The First Amendment; Robert Baram And Robert Smith

VHF radio in cooperation with the Institute for democratic communication at Boston University now presents the First Amendment and a free people and examination of civil liberties and the media in the 1970s and now here is the director of the Institute for democratic communication. Dr. Bernard Rubin welcome on this edition of The First Amendment a free people I'm very pleased to have as my guest Robert Baer and Robert Smith both the professors at the school of public communication at Boston University in addition Robert Smith is chairman of the broadcasting and film department. Robert Barron is a well-known journalist and editor and author and poet among other things as is. This is Robert Smith. Let me just throw out this question on the subject which is Nebraska Press Association versus Stewart. You all remember that case rather recent case where a family was murdered by one man in Nebraska wiped out the most bizarre case. And the district court judge when he was he was apprehended in Lincoln

County Nebraska issued a gag order against the press forbidding publicity. On the facts of the case the case then went to the Supreme Court. It was brought by people who are interested in upsetting the gag order. And in a pre July 4th celebration this year the United States Supreme Court gave us a ruling which said that the the gag was overruled. They did this unanimously But the interesting point about this was not only did Mr. Justice Burgo the chief justice give the ruling for the majority opinion but in one of the key clue concurring opinions which is not law but expresses the strong sentiment of Mr. Justice Brennan. He added this bit. The right to a fair trial by a jury of one's peers is unquestionably one of the most precious and sacred safeguards enshrined in the Bill of Rights.

I would hold however that resort to prior restraints on the freedom of the press is a constitutionally permissible method for enforcing that right. Judges have at their disposal a broad spectrum of devices for assuring that fundamental fairness is accorded the accused without necessitating so drastic an incursion on the equally fundamental and salutary constitutional mandate that discussion of public affairs in a free society cannot depend upon the preliminary grace of judicial censors. And of course I'd like to throw this out first to Robert Baer and Bob. The decision is obviously very good for advocates of the worlds of the media and its First Amendment right. There is a subtle difference between the burger and the Brennan views which do you think will be more important

in the long run. Well if by more important I mean which will have more effect right. I would believe speaking very pragmatically found I use an abused word that it will be the burger decision because clearly this is a Burger court. And although Brown plays a very strong role and I might say very personally I find him one of the great justices. I would guess that his influence on the court at large will be less than that of Berger. What Berger is saying and I said in effect you know if I make caps you like perhaps repeat what you didn't know is that only under extraordinary circumstances would pry restraint be permissible he in no way spells out what that would be and I can understand that how can one determine when that priced right restraint might be acceptable. Brennan says in effect very much what Hugo Black did in other words in other words that it should be no

prior restraint. But the press itself has in the past. Applied prior restraint doesn't seem to mind when it does it on its own in wartime. It did in effect on the Bay of Pigs. It's part of the press did when it knew the story although you may remember that Jack Kennedy later appeared before the American Newspaper Publishers Association and chided them and said Don't ever do it again if you know the story say it maybe it would have saved him the embarrassment that he could have he could slap the press but he wouldn't slap himself. So I would think that Berger's decision Burgas point of view will be stronger than that so long as he and the court. In other words the court is very reluctant to to give permission for a gag rule from any other court but sees the necessity for it under certain circumstances which it doesn't spell out in any way. Robert Smith How do you look upon this decision lightly with what Bob Baer said Bernie but I

I would point out that this is only the first in what I assume will be a series of confrontations over related questions that are likely to come up. And I think Justice Brennan and gives us some clue as to what the future cases may involve. For instance a judge may now. Within this ruling still close a preliminary hearing and at some point presumably some newspaper radio or television news man is going to object to a closed preliminary hearing arguing that this amounts to a gag rule and so we're going to have I suspect in the future some examination of administrative procedures within the judicial arrangement to determine whether or not that constitutes a first or a first amendment prior restraint. The same thing is likely to occur I should think also on the matter of instructions from judges at the moment a judge may instruct a witness or counsel for the defense or any other participant in the trial not to give interviews not to express any judgment on the proceedings

outside the court. That amounts to drying up the well how can a newsman report if he's not allowed to interview someone. And so it's likely that when the right opportunity comes when the right kind of case comes up that we'll be hearing those in the future. Does it seem likely though that the court by this decision has flared off the a multitude of petty judges you might use that phrase under consideration or lower court judges in the States who will be less. Anxious to gag the press because they don't read the law that much and then in some cases they don't know the law that much when it comes to gagging the press they will look upon this as a presidential case and and keep away from this particular modus vivendi. How do you feel about Bob Barr. I would guess that even though some judges might not keep abreast of flying I would hope it would be very few terribly small and you don't know the state of the law you do share even it sounds like you are you know the state of my

belief an optimism you know and idealism and any rate I would guess that attorneys should keep abreast of but I guess if you want you can say the same thing some attorneys It is difficult for them to keep. In touch with all the changes but a case of this magnitude I would believe with the publicity that it received and the discussions that it would be. I would believe well known to almost all members of the judiciary and a right when my point was had they not tourney's had they not done this. More judges would have been gagging the press but now that they've done it until something else happens in a landmark way the judges will people something else will. Clearly the conflict between the first and sixth amendment when the fair process fair trial as we say in the free press is inevitable and it will get will continue so long as those two amendments are in our in our system of laws.

Rather it may be our first regulator. Excuse me Bernie if maybe we're speculating. Since none of us here is a justice at the moment at least about Why do judges issue gag rules. One may assume that they're trying to protect either the possibility of getting a conviction. They're trying to protect also the impartiality of the jurors. But far more than that I think they have a personal ego investment in trying to prevent a reversal. And so by issuing a gag rule they put evidence in the record that they have made every possible effort to assure the impartiality and so there's less likelihood of a reversal. I think the impact on judges won't be known until we find the first case which is likely to come up in which there is a reversal based upon the bias the possible bias of the jury because of pretrial publicity. And at that point I think the judges will have to decide do they run a greater risk of

reversal because of this or is the Supreme Court essentially saying gag rules should be used only in the most unusual circumstances and the court would not expect to reverse a conviction based upon that kind of oh actually the if there are reversals in the future. A lot will depend upon whether or not the rights of the defendant have been protected. Given all the powers that judges have other than gag rules and also I think this is a very key point on the responsibilities of the press. The court talked at some small length about the the press itself having an involvement here that it must be circumspect in how it handles very delicate cases. Do you think that the press is mature enough now to take in stride this decision of July 1st 1976 and that editors and publishers from the small town weeklies to the big city newspapers will be more aware of what they're dealing with O timing with Bob Arum.

Well you may recall that in the comments that followed the Nebraska gag rule decision by the U.S. Supreme Court and in the US read opinions by the justices that it was Brennan who said that. The responsibilities of the press are tremendous. Certainly if we are to have the freedom to do what we can do because of the First Amendment we have we have a very heavy weight on our shoulders. We always have. I don't think we've always carried it out well. And I do I believe this is when the Supreme Court has reversed some decisions as in the Sheppard case. But what they were saying in effect is that the press did not appreciate the Sixth Amendment. It may have appreciated its own way of life but it did not appreciate the fact that another human being had rights as well. And since that time I believe we have noted a definite improvement

overall in the way the press at large covers crime. I am worried though frankly since you pointed this question to me. That about the fact that with circulations decreasing in the American newspaper world this is for the first time in decades and television playing such a big role that the print medium may seek a little more in the way of sensationalism than enlightenment. Yellow journalism as you well if you will yes and I'm also concerned because I'm certain you if you follow television itself in news coverage the mishandling of information relating to trials to guilt or innocence there will have a tremendous effect on the lives of human beings. You can see it here in the local media. We've had a couple of mass murder type cases here you know and some of the television stations here it seems to me I'm more interested

in proving that they have scooped the others than in a lightning their audience. And I think there are regional variations I think Bob and I spent very little time in California but it seems to me there is much more of that kind of reporting on television in the San Francisco and Los Angeles areas than here in Boston I agree with you. Yes but I think you're right about things moving from west to east they used to move from east to west or west or wheezed go Barbara about raises an interesting point as you note about Smith on the question of television being different than the print. It doesn't enlighten it doesn't have the capacity. Anybody who who is serious about a subject supplements any television viewing with deep reading from any kind of source that you might imagine books magazines newspapers learned study whatever it might big TVs yet the same might get more pronounced with this with this problem. But you might I think at the same time that one expects certain kinds of people to do background reading. The statistics indicate that large numbers of people use

television not only as their primary source of news but perhaps even their sole source of radio is 60 percent of people. So that means the responsibility on television is equally as great as that on any other medium. There is there is a difference though it is like saying that the Navy some time ago used to put it. Greatest presidents on battleships and didn't pay much attention to the Air Force there was a weakness in the battleships and I think there's a weakness in television which could could become more pronounced if we ever got another Nixon administration where we ever got somebody who started political trials in this country. Who is in charge of an administration as the Nixon administration began to do or began to twist television first because it was the weakest member trying to get television to succumb to the rule set down by administration for Public Broadcasting and whatnot. But beyond that long range threat of possible corruption in the at the

highest level in the federal government I think there are two weaknesses that are built into television in reporting legal matters. One is the matter of time. A newspaper can include a great deal of detail for instance you gave us a copy of The New York Times for July 1st which contained the complete decisions of the justices or at least the major of concurring opinions. But. That's not possible in television where for instance only one or two phrases perhaps would be reported out of the so it means there's a built in super officiality simply because there isn't enough time to give that kind of detail. Then beyond that there is the matter of not having specialized reporters the The New York Times the major news services have reporters who are experienced in specialized to some extent in various kinds of news. Television has tended not to do that and it means you have what amounts to a general reporter handling a highly specialized area and I think that can lead to

problems of interpretation or misinterpreted or I turn to him before I turn to Bob Arum I just want to interject a light note here if they just took a particle of the clothing allowance that they use for the news departments of some of our major television stations they could run a program on traditional news every week just to touch on a few points about some of them and that you have in the New York Times. We do have to keep in mind. And I believe you alluded to it at the New York Times was not read by the great bulk of the population. Recently the Democratic convention was held Barbara Jordan congresswoman and Senator nice as a young man made opening and dresses and how everyone felt about them from a political point of view. They seem to be rather well put together and as they say sometimes important enough to listen to. But if you look at the press the next day I believe Louis Lyons pointed this out in his radio broadcast last week. You

found almost little coverage just a few quotes but there was a great deal of coverage of course about the upcoming Olympics and other such affairs that are of great consequence to the way the world will live or die. And I think that we mustn't when we look at the times in terms of what it does we must keep in mind that the Times may handle things in depth. But this is not the norm. I ther many newspapers and metropolitan area and newspaper people still will say well if we don't cover the Times doesn't someone watch it they'll get it. But you can have you can have to be able for it to bother you price of new you raising your voice really want to throw right at the both of you. All I'm trying to say is that I say this with pain. Let's not assume that the print medium because it can do things more in depth will it can. But even there you find that the columns because of newsprint shortages are very strong reasons because of cost factors of the columnist used have 750

words for covering City Hall the courts not get five hundred fifty words and you have to keep saying that while the differences I pointed to may exist between say a local radio or television station in New York Times the difference between the radio television station in the local newspaper may be much less especially if the people who get it on television don't read the newspaper could only become so when it comes to a fair trial and free press and this is what I want to throw out of the both of you. Involved in it is your. Your sentiments here. We don't have a quality television station in the whole country or a really quality radio station the whole country. There are the question of does the New York Times as against other newspapers now the New York Times had a failure. And you pointed out in this particular coverage. But on the whole there are good newspapers that do a fair job every day despite deficiencies television. Even the public television and public radio is aiming at such a mass market that if anybody proposed to them that we ought to put together a

very interesting program for the 20 million Americans available at any moment have been to college and taking these wonderful high school courses on the on the courts in the relationship to to the public in on decisions and so on and so forth. They probably be laughed out of the room. You have to have what they call a documentary which is sometimes very powerful and very prestigious or you have nothing. There is nothing on a daily level and television is a daily instrument most people as you say get most of their impressions of what is news from television. Is there something in regard to the Sixth Amendment and fair trial. Which is goes a banking simply because one of our major instruments of communication is so weak not only in this area but in areas medicine and law that are typical of this on a regular basis. There may be I'm not quite as pessimistic as you are bringing about this in my optimistic statement. Oh I know that I underlined it I'm not as pessimistic as you are about

the likelihood of quality materials on radio or television but I think the practical impact of the court's decision has to be understood in how do most people get their news and what involves most people and the existence of will say more public broadcasting stations or better funded public broadcasting stations would probably not materially affect the information that most people have the large audience I think is seems to to find sufficient attraction in the programs offered in the commercial system to stay with it. And so I don't think that the existence or changes in public broadcasting or some other kind of. Quality broadcasting is likely to really change very much the level of information that most people have and might to some degree and if it did. I mean if there is a chance I think we should try to do something about it and I know that some oh yes for some other reason like I'm like a warm wee wee but better broadcaster but I don't think that that would change.

Yes I have a feeling but I know that one of the things that we like to refer to in our country embark pull out of the file whenever we have a problem is the media. Especially now television we see television could do this and it could do that is if it could do with the whole educational process. Clearly there are masses of Americans at all levels who really don't even know what the amendments are. Telly don't television could certainly do something about that I would think the school system collapse. Frankly I would think the youngsters when you step away do you separate the school system from this thing that is so prodigious in American law not to separate that you have to separate what I'm all I'm trying to say is that if one expects the TV's going to going to walk in and suddenly become the all enlightening medium it can't be that the educational system must build some kind of foundation here so that youngsters going through the system appreciate what amendments mean not to memorize them for an examination to appreciate what they mean when something such as Nebraska case comes up. If they have civics

courses in school high schools and junior high schools all chances are quite bright. Why they should discuss these. Suppose you're a member of the Boston bar I'm now elevating you one of the most prestigious May numbers of the Boston bar all right in the houses and you wear pinstripe suit and you have. You've defended a great many people are doing so here causes you don't ask a fee sometimes and you turn on your radio and we're now dealing with trials and you look back upon the Bruno Hauptmann mess in the thirties that particular trial and you know about the John Peters in your case and you know even before those cases what happened to poor old William Penn when the when the judiciary aside from the media clamped clamped a gag on any more than three people speaking in Britain together. This was at the heart of the William Penn trial in London. Which is a fundamental to our whole concept of jury trials and you turn on your radio and you say my goodness gracious you know that there is nothing on any part of the spectrum here

even though this is a big news story there is no provision made there's no modus vivendi for bringing this to the attention of thirty million American high school people. There's no interesting way of portraying it. It's nothing but but noise. And it has nothing to do not only with the with the bar and jury trials in the media but we could list 20 other things Any day that the radio ignores and yet radio is a powerful instrument for communication ask our nobler what he might be able to do if he gave when he was in his prime. What he could do in presenting dramas that would bring this to the attention of the law. I would back up to something that Bob Arum said a couple of minutes ago and he said the press perhaps the work needs to be done in the school and I think that's the place. And the reason is that the audience in a school is a captive audience now fish and sea may go down if you're trying to do something that they don't find pleasurable or potentially useful or interesting. But nevertheless the the audience is captive. In a mass communication system

the audience is something quite often when we talk about the need for we'll say detailed reporting of Supreme Court decisions we think about the input we would like to have. We would like to get this out to people but the audience isn't captive unless they choose to listen no matter what you put in there. It's not going to have much effect. The American audience has shown not only the American but that's where we were we are has shown an amazing willingness to go to great lengths to avoid what it doesn't want. And I'm thinking perhaps elsewhere of the BBC and its attempts to prevent the broadcast of rock music in the 1950s and early 1960s. It led ultimately to the the structuring restructuring of the BBC and to the structuring of the new radio service that would make rock music available that would in that case we're talking about an attempt to prevent the broadcast of something. But I think in any mass communication system the audience

have the audience's preferences and tastes are ultimately controlling. Bob Arum do you believe and agree with that. Well you could say of course that if the audience won't buy it they won't feed it because if the ratings don't show that the audience wants it then they'll they'll change. However this is the Roman Coliseum so far as I remember this is where you say thumbs up or thumbs down and some people say you know chop his or her head off or not. And I would think that we do have to have some appreciation of what our audience needs and wants this is one of the reasons why some of the programming both on radio and television will have to go out to smaller audiences who also as citizens as individuals in this country deserve our appreciation if you will of knowing that they're there and have special needs indeed so that we do have some programs we will have to put on without looking at the ratings. But I don't really worry about when we stop to

stop to think about pandering only to the tastes of the public and I hope that doesn't sound snobbish because if that's true Watergate would be really an every day affair maybe it is but maybe one of the reasons that we have such things is because we want to give the people only what they want. I wasn't thinking of pandering but I was thinking of what you said at the beginning when you said if essentially if there is no audience there it doesn't matter very much what you put in the system if nobody I'll tell you are there's no audience but. But clearly if we're going to do our job then we're going to have to understand that our audiences many times may not be very loud We know that any time we put on a controversial documentary on television and you could say this of radio that the audience starts to narrow down in terms of numbers and it's one of the major reasons why we get almost no controversial documentaries. The something in the Pentagon was hardly a controversial piece of information but we get so few documentaries that go into anything that is that might become

sensitive when we get something such as something the Pentagon some people thought that we had opened up a new kind of world. And we really had not. Justice Burger I thought put it well and this is just one sentence that I think is appropriate the extraordinary protections afforded by the First Amendment thinking here of broadcasting and newspapers carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly. A duty widely acknowledged but not always observed by editors and publishers. That's right that is also the duty that insurance companies carry but not always in our best interest. I want to thank Robert Smith and Robert Burnham for joining me today on this edition of The First Amendment and a free people. Thank you. V8 radio far from in cooperation with the Institute for democratic communication at Boston University has presented the First Amendment and a free people. An examination of civil liberties and the media in the 1970s. This

program was recorded in the studios of WGBH radio Boston.