The First Amendment; 1; J. Anthony Lewis

Pen technic on is made possible in part by a grant from the career cooperation of Lowell Massachusetts. WGBH Boston in cooperation with the Institute for Democratic communications at Boston University presents the First Amendment and a free people. An examination of civil liberties and the media in the 1970s. And now here is the director of the Institute for Democratic communications. Dr. Bernard Ruben. Tonight we're going to be talking about the so-called gag rules Carolyn Lewis and myself Bernard Rubin of Boston University's Institute for Democratic communications are happy to have Mr. Anthony Lewis of The New York Times is our guest. Mr. LEWIS As you probably know want to put surprise in 1955 for a series of articles he wrote for The Washington Daily News on the dismissal of a Navy employee uses security risk. He joined the times in 1955 making the Supreme Court a special beat. I was chief of the London

bureau for a number of years. He was also the well-known editor of that important landmark book Gideon's trumpet which shows a triumph if you will of the American system. After much travail for a party a very very important book and also portrait of a decade. He's currently teaching a seminar at the Harvard Law School as a lecturer on law does a column twice a week for the New York Times and is probably one of the most influential people in American press today. Carolyn and Mr. Lewis what we're really talking about when we use the word the phrase gag rules is the conflict between the First Amendment and the Sixth Amendment or the perhaps better the relationship between those two amendments. And just to remind our listeners the first says that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of

grievances. The CICS says that in all criminal prosecutions the accused shall enjoy the right to a speedy and fair and public trial by an impartial jury etc. etc. etc.. Now. As we begin this discussion I think it is important to note that there have been more gag rulings on the press than in volume at least and they have been in recent decades and also it is important for us to realize that any one of us in the in the American public has a special interest every one of us in this particular subject because we may be the world before the bar. We need of the press or whose rights are being abused by the press or the bar or by a judge or by a jury. With that I'd like to throw it open to Mr. Lewis to give his first commentary on where he stands. Mr. LEWIS. Oh I'm a newspaper man I don't take what could be called an all out

view on this issue that there never can be any restraint on the press. I think the burden always ought to be overwhelmingly on those who seek to put any restraint on it because I really believe in the importance of the First Amendment. But I can imagine situations and there have indeed been situations in which well let's make one up a small town in the south or Middle West with a limited group of people from whom to draw the jury. A horrible crime a sexual murder another town very exorcised and newspaper discovers something about the record of the accused or discovers that he is made a confession. I suppose that confession who knows whether it might have been beaten out of him or whatever. I mean I can see that it would fatally prejudice the case of that defendant before a jury if the jurors all knew before they were drawn that the details of the alleged confession in the

case. And for me all that's involved and all that ever should be involved in such an order is a very brief time that is to prohibit the publication of that kind of very prejudicial item that is a narrow prohibition directed only to that egregious item for a brief period until the jury has been selected and. Put in a hotel where it doesn't read the newspapers that's all there is to me. Well Carolyn we seem to be getting awfully close to what's in the newspapers at the time the Nebraska Press Association vs. Stewart case and what should be done about that Carolyn how do you know which was the Nebraska case involving a man who's been declared guilty of six murders and so on who allegedly had a confession. Carolyn how do you feel about these guys. Well I sympathize with Mr. Lewis's position on it. And I do think we do have to be careful to protect the rights of those who are accused. But the only problem

here is that where do you stop if you if you start taking nibbling away at the First Amendment. It end you start doing it with good cause it may open the way to nibbling away poor less good causes in the future and this is I think the great fear in the press. The question I'd like to ask Mr. Lewis on this is. How can you. Protect the press from judges and courts which may use this little chink in the armor of the First Amendment to cover up perhaps their own wrongdoing or cover up. Prosecutors who have gained confessions without using the legal protections which we all have. In other words where do you where do you draw the line in it and how can you draw the line and is it wise to start it in the beginning where we could easily talk for half an hour about that one question since it is I think the central question. If there weren't the danger of judges going on to cases beyond the

extreme one that I have stated then there would be no problem. And that is the problem. Let me say one thing first it is in the nature of courts and judges that they have to draw the lines and they don't ordinarily have simple clear I mean the classic phrase was Justice Holmes is when somebody wanted to overthrow or held unconstitutional rather modest tax on the ground that later on some other tax might be applied the power to tax is the power to destroy it was said in Homestead the power to tax is not the power to destroy while this court sets. So you know one has to look for judges to draw lines. I think one has to begin and then you know we can go on about it because it's a big issue. One rule that I would certainly favor is that there should not be any gag order. The very word sounds so awful doesn't it that should not be any restraint on the publication of potentially damaging material about a defendant before trial except at the request of the defendant and his counsel.

Now you posited I think in your question the possibility of a corrupt judge or an unfair. Prosecution in which case the press might be very helpful. It often has been helpful to a wrongly convicted or wrongly accused defendant. But if the defendant has competent counsel and he wants the restraint and he's afraid of what publication may do then I think he has answered that problem anyway. Well this presumes that the judges know what they're dealing with. We know that there is such a feel now as legal medicine in which the judge the jurists and the bar gets together with the medical profession on a common problem. I think we're entering a new period in which the judge is the bar in general does not realize the effect of their orders on the press. Nor do they understand the press problems. And I think it's true in the other direction as well. How do we how do we solve this. I know it's easy for a newspaper to editorialize that there is a gag there on the reporting. And it's also

easy for the judge as in the in the Starkey ruling on the New York Times case and Sonny Carson situation where there was some restraint put on pretrial publicity of previous backgrounds of the defendants in this case in another case. He said The Times itself is deciding what is constitutional and what is unconstitutional. The Times seems to have tunnel vision if you will. I think apparently that the Constitution of the First Amendment. As the first member and they do not consider the Constitution as a whole the right of the defenders to have a fair trial. Now I don't want to talk about the times but I do want to talk about Mr Justice stocky. How does he know what is constitutional and what is unconstitutional other than his training as a judge involved but the history of the United States is the training that we have on the first amendment through the press and the bar and individual citizens does that raise a problem. Well there is a problem of judges not knowing enough about the

function of the press surely. But you know there are lots of things judges don't know enough about and I often think they're wrong but for good or ill we have rather staked our system for the last while ever whenever Marbury Madison has decided it's about 170 years now. On the proposition the judges are to have the last word on constitutional questions might have gone we might have had some other system in which everybody who had the last word but we didn't choose that and went to granting their last words to the last would not be better educated in this in this way. Well I'm for that now that this particular case is worth saying just a word about what justice Starkey did. It wasn't actually a pretrial order it was an order during the trial and to me that made all the difference the jury had already been selected was sitting there trying the case and it would have been very easy for the judge to say there's a danger here of prejudice if they read the newspapers he had instructed them not to read the newspapers the jurors and they were not as far as anyone knows. But he was worried about their reading when he could have sequester the jury instead of which he he issued gag

order which I think is clearly wrong in that instance when he had an easier alternative. Well Mr. Lewis that's the point so very often there are alternatives. You mentioned a case very at the beginning of the program. It was a small town and perhaps some evidence of coming out in the end it could be prejudicial to the rights of the accused. Well why not move the case to another place in other words. When you start to tamper with the First Amendment you you tamper with the public's right to know and it's a very various And we've learned that over the Watergate period surely that if we if we are denied information we may be in great difficulties. If there are alternatives like sequestering the jury or removing the trial why not go that route so often the judges seem to take this easier route of trying to keep the press silent. There is another alternative to that's been proposed and I would like you to comment on this that they gag the prosecutors that they gag the people who were involved in the case originally in other words make the silences at the beginning of the case and let the press really have to go and work for its

information. How do you feel about using those alternative means. I'm all for alternatives and I the notion of prohibiting not only prosecutors but defense counsel and policeman from those those in other words who are directly within the jurisdiction of the court from talking has been tried. And that specifically it isn't the perfect solution and let me tell you why. Because when there are such orders nevertheless leaks occur then judges get very angry that somebody has leaked and a whole new proceeding starts about who leaked. That's going on and it's gone on in the California case and then the reporter is called to ask who his sources and he refuses to testify and you're off chasing another hair so it doesn't really it may work but on the other hand it may not. Now as to the change of venue that you suggested in the Nebraska case I have to know more about the specifics. Generally speaking I would be for it. We don't know how much saturation public city there was in Nebraska and whether that would have been effective. But you know I just think my general

notion is that the press gets a little too monumental about all this as if it were the end of the world. And I doubt that except for the foot in the door theory that you put earlier but I mean here was a case in which the pressure in Nebraska was being asked to keep quiet for two weeks about the fact that a man allegedly had signed a confession. And why should the courts have to go through a tremendous effort to find a jury somewhere in some other remote corner of Nebraska when or you. It's not as if we were talking about the Pentagon Papers or the. The right of the people to debate the fundamental issues of the country. Two weeks about this matter just doesn't strike me as that monumental. I think what made the press so upset about it though was the cumulative effect and I think Bernard mentioned this earlier that we are seeing so many of these gag orders it's a tendency to nibble. Consider for a moment the climate in which we're getting more of these gag orders. I have a theory I'd like to throw out to both of you and knock it down if you will. There are a lot of this

goes to the people's fear of increasing crime. We see more and more. Criminals or people convicted appealing and having the conviction reversed on the grounds that they couldn't get a fair trial because of publicity. Now do you think that's what's operating. In other words Hamilton in the Federalist papers said that the First Amendment freedoms are all are going to depend on public opinion and is public opinion pressuring the courts now to deny to convicted people this. This loophole by which they escape. That sounds convoluted but I feel that people see so many people convicted overturned because the court says you don't get a fair trial there is always pretrial publicity. And are the judges reacting to that. Atmosphere of fear. I don't know whether it's it's popular pressure in a direct sense I rather doubt that but I think there is a general feeling that too many criminal convictions are reversed and it's a feeling perhaps

held more even more strongly by trial judges than by the public at large because they don't like to go through what in this country is in my opinion often an excessively long elaborate procedure and then have it all wasted they don't like that and they may well therefore try to prevent. Take preventive measures. That's true. I also think that. There is a good side to this which we ought to recognize. I happen to agree with you the judges have gone much too far and we can come to that in a minute but there is a good side to it and that is this 20 10 even 10 years ago 20 or 30 years ago. There were situations that I think none of us could be proud of in this country in which people were were tried for serious crimes even capital crimes in an atmosphere of Lynch Lynch atmosphere. And you know the Scottsboro case it literally was a lynch mob surrounding the courtroom and and putting the jury under this pressure even though we don't like that and until as I say 20 or even 10 years ago the courts more or less said

whoa whoa we won't do anything about that now I think there's been a rather more sophisticated and sensible and sensitive view developed in the United States that people shouldn't be tried under such circumstances. And maybe it's developed in part because we've seen what it's like in totalitarian countries to be tried in a stadium full of chanting people shouting hang him. And we don't like that and that's good and we ought to be pleased that somebody tries to have an honest impartial jury. But on the other hand are we not going too far after the travails of the last few years about Vietnam and the Pentagon Papers in which there's been a great public suspicion of the executive branch in general. Is there not an overreliance now in the judicial branch and is the judicial branch not taking an executive function as it were in some of these gag orders going outside the line of the law. To the lines of impressions as to what would happen if these stories are hit even on change of venue. Moving a case from one

district to another in an era of mass communications This may not be the solution. Well if you if you're putting the question to me I would say generally speaking judges have always felt quite free to develop the law in matters that concern their own function and here after all is a criminal trial and protecting the rights of the defendant so I couldn't really object to the court's trying new measures to do that when as you say even the change of venue may not help much. On the other hand I think it would be desirable. Certainly possible and I believe desirable for Congress for example to lay down rules as to when and very narrowly won. And even in the and only in the most extreme case when you can restrain. Press comment before a trial but you know when you say that you realize how hard it is to do

and you're never going to get Congress to agree on it. So like so many other things going to be left in the lap of the judges and I read something by the American Bar Association which they try to set up the rules for these guidelines between the bar and the press and the rules are so complicated that I don't think in a particular case you'd ever get to know what to do. This below is I brought a quote along from Sidney Zion who was a former legal reporter for The New York Times you've probably seen it. And as you did spend so much time in Britain I think as the British system really operates more in secrecy in terms of trials let's just compare it for a moment with this design in a recent article said England has a conviction rate that is the envy you have to tell a Tarion powers. And as an extension of the system the British press does virtually no investigative reporting of the judiciary the police or the prosecution. That's the end of the quote Now I want to ask you first of all I obviously his duty using loaded language but that's putting it mildly. OK. Let's look at the the British system and their system of justice. To what extent has it been

injured or damaged. To what extent is it a plus or a minus to have so much of the court proceedings or the the pretrial publicity denied to the press. Well first of all we have to say what the rule is it is a very dry county and you cannot as a newspaper publish anything about a criminal case other than the name of the accused and the charge as far as I know unless it comes out in court and when they have pretrial proceedings the committal proceeding or whatever those may be attended by the press and the public but the press may not publishing publish anything about it until after they the later trial and the purpose again is to prevent the jury from being biased. The exception to that and it goes back to something I said earlier about the right of the defendant is if the defendant wants the matters to come out at the pretrial proceeding to be published he can change the rule you can just say

I want this to be open to public aid how many defendants do that. Not many not many but the the the case in which it would be used is in which you think there are other witnesses to the crime and you're really innocent and you want someone to come forward and so in a sense you want the publicity. But it seems to me rather fair to leave it in the hands of the of the defendant. But to come back to your question Carolyn. I think I wouldn't want the British system for us and we couldn't have it under the First Amendment because while I rather approve of the notion of not publishing adverse comment for the trial design is right in saying that this rule and many others which we don't have time to go into Official Secrets Act and many other things just hamper the press too much. Not in this area but in there looking into corruption into abuse of power and the things that under our system. I think the press has to do they rely in Britain on something else to sort of they.

Somebody said to me we don't take pride as you do in having a government of laws not men we have a government of men not laws. They believe in other words in. The well behaved official they have confidence that this fellow who's been brought up on the playing fields of Eton or some other such rubbish will be a nice and corrupt man and usually they are but we couldn't have that confidence and I wouldn't do that. Well doesn't that raise the central issue here being a government of laws and not men. The press operates under a basic guarantee in the Constitution that Jefferson insisted upon when they sent him the draft. As I recall in France and insisted upon amendments particularly this kind of amendment and so does the juridical group depend upon the same thing. Is there any compromise possible when we have such vested interests constitutionally between the press and the bar. Well of course the First Amendment has never been absolute has it. Except in Justice Black's mind.

You know we can all sit here and think of a hundred ways in which the press has not been made absolutely protected from government. Why the Associated Press. Thirty years ago I thought that the First Amendment exempted from the anti-trust laws. But that wasn't true and others thought that if the First Amendment exempted the president press from ordinary taxation. But that wasn't true and the press is subject to rules of safety in the operation of its machinery and I mean everything the press may be subject to the First Amendment is not a sort of absolute and it never is even has to publication. It isn't of an absolute as to obscenity some of us might think that the obscenity laws are silly but in fact some of them apply only apply I agree with you completely but it is absolute in the sense that it is a grinding force throughout our history. For example the other day the Supreme Court in determining constitutionality of the election control situation brought up the First Amendment and in effect said that speech was implied in the not as an absolute because not is enough the court said in that case that the risk that the corrupting

effect of money was another factor to consider and it could be bad enough to allow some restraint. Because the court did allow part of that statute to stand despite the first mouthing of my question really is given all of this background. Is it possible to have a compromise a guideline compromise between the press and judges. In your opinion. Well but you asked me to do is to pretend I am a Supreme Court justice and to write the opinion in the case and I think I could do that. And I sat a little a modest but I don't think it's so hard if the Nebraska case came before me I would write an opinion that mostly said what you what judges could not do. And I would give illustrations if you could not for example as one judge recently you could not prohibit the publication of a newspaper column that was critical of something I decided you could not I would have a whole ten commandments of thou shalt nots and then I would leave a tiny little thing saying the only kind of restraint we will ever approve is one directly right before the trial of a criminal case directly

related to the fair treatment of the defendant requested by the defendant the character of the material to be restrained. Obviously potentially damaging to the rights of the defendant. And that's the kind of opinion. Right. You say that the First Amendment is not absolute. In view of that and all the successes of the press recently. Why the howl of pain when judges do try to say hey the Sixth Amendment is important to fellows is the press now suffering from a form of megalomania. Is there an arrogance of power. What's happening that the press feels this must be a total uncompromised requirement and freedom that we should have. Well I think that's characteristic of all interests that have issues of this kind before the the courts of course they state their position in a very strong way. And then the court has to if the somebody else states the opposite in a very strong way in the court has to really referee it I think.

Myself that it would be that the press might be politic to take a slightly less hysterical town. I mean I think it might be more effective I think back to the Pentagon Papers. In that case which the freedom issue seems to me much much more important than the right to print somebodies confession before he's tried namely the right to get at the root of the Vietnam War. I mean that really mattered. Even there the New York Times did not in the Supreme Court argue for an absolute view of the First Amendment by agreement with the newspaper and its editors counsel for the Times professor pickle argued. Only a relative view and said there might be. He said. If the fate of the nation was at stake and we could really strip the nation bare to its enemies by what we were about to publish we would agree that you could restrain us while some people thought he was wrong but I thought he was right because that was a good way to win the case you have to convince the judges by being reasonable.

Would you agree though that while I there's no dispute that the Vietnam War is one of the great crucibles of our day and has been for more than a decade that if you are the defendant in a single case that that's your Vietnam War and that it's perhaps difficult to say that one is more important than the other because our defendant but I mean important to the public. The importance in the sense of the public knowing about it it's very important for the public to have knowledge about the origins and reasons for the Vietnam War. But your case is very important to that individual. And under our system I think the importance of the individual really matters. We have about a minute left. I think we want to give that to you Mr. Lewis. You want to say something that has not been covered. Well yes I have a reasonable degree of confidence in the Supreme Court's ability to handle this question. I don't I think the court is not as sensitive to the needs of newspapers these days as it might be. And it does things that worry me but I

think it will come out all right in the basket case from my point of view. I don't think editors on the whole will be pleased and I think they are right to go on struggling. To not let it be. Carolyn's I call it the foot in the door theory because you know it just that you come to see I make a slight patriotic speechifying and that is you come to see how important it is to rely on the press not that it should be arrogant as as you said Carolyn but you know Congress disappoints you you think the Congress is going to be brave and keep on fighting the executive about things and then suddenly they just decide to go home or they decide not to bother fighting are they worried that somebody will question their patriotism. And so it's necessary for the press to be sometimes a little what may seem to be truculent or aggressive. Well I think that time has gone so speaking for myself Bernard Rubin and for Colonel Lewis both Boston University and the Institute of Democratic Democratic communication we thank Mr. Anthony

Lewis of The New York Times for new sedating witness on gag laws and rules. Good night. WGBH Boston in cooperation with the Institute for Democratic communications at Boston University has presented the First Amendment and a free people at examination of civil liberties and the media. In the 1970s. This program was recorded in the studios of WGBH Boston band technique and is made possible in part by a grant from the courier corporation of all Massachusetts.