news gatherers. Public protestors, knowing that law enforcement personnel are impersonating news photographers, and not being able to distinguish between the two, we believe, will naturally attack indiscriminately all whom they observe with cameras, in order to prevent having their pictures taken for police purposes. If they know the law forbids impersonation of news gatherers by anyone, they will be less inclined to personally attack and inflict bodily harm on those whom they know to be gathering the news legitimately. We sincerely hope the subcommittee will add these important points to S. 1311. Further, we give our strongest support to the provision in S. 1311 regarding nondisclosure of sources. It is generally agreed that a strong and free press is the keystone of our democracy; that the public's right to information is fundamental to the freedom of all Americans. However, it is ironic that newsmen have at times risked imprisonment in order to protect the sources of information vital to the very welfare of the communities and citizenry they serve. We believe the relationship between a newsman and his source must be one of sanctity and must be treated in the same regard as the relationship between a doctor and patient, attorney and client, or clergy man and parishioner. We feel this legislation, and our proposed additions to it, will insure that paramount right of the American citizen to an uninterrupted flow of news. A well informed citizenry is vital to our democratic system. We believe any watering down of the protection provided by the first amendment, no matter how well meaning, can only weaken that system. The news media cannot be an effective watchdog over public affairs for the American people if it must disclose all information gathered in confidence and the sources thereof. The legislation you are considering today will further solidify the well established protection of the first amendment to the Constitution. It will do this by making it explicitly clear that the right to disseminate the news will be meaningless if the right to gather the news is not protected. And it will make it explicitly clear that the public's right to know is a constitutional right which is not to be tampered with. In summation, we believe news photographers must be granted the same protections as other members of the working news media as enumerated in S. 1311-that all working journalists must be permitted to maintain confidential sources that unused photographs, newsfilm and sound recordings, must not be the subject of subpoena by anyone-and that the impersonation of news gatherers must be forbidden. Certainly nothing less than unqualified, absolute protection of the newsman's privilege to gather and disseminate the news without fear or favor is sufficient to preserve the free flow of information the public is entitled to under the first amendment. That, gentlemen, is what we believe it's all about. Senator ERVIN. There is a Chinese proverb to the effect that one picture is worth a thousand words. And I think that is undoubtedly true. Perhaps that is the reason that law enforcement officials adopt the guise of news photographers when they conduct surveillances of a rally or gathering or demonstration. That also explains why those who are being photographed, fearing that their photographs would be used in the future by the Government to injure them, are so often tempted to assault anybody who appears in the guise of a news photographer. This subcommittee heard evidence, in investigating the surveillance of civilians by the Army, that one of the favorite disguises adopted by military intelligence agents in observing persons who were making various protests about Government policies was to appear to be newspaper photographers or photographers for a news. media. Now, I believe that the great majority of people who have studied the First Amendment do not agree with the late Justice Black that First Amendment freedoms are absolute. They believe that in compelling circumstances the Government can place limits upon most First Amendment freedoms except the freedom of thought. However in determining what is an overriding public interest there is sometimes a conflict between public interests. I think this conflict appears in the field of news gathering. The public has a great interest in knowing the truth, and I know of no way for the truth to be more accurately presented than by pictures. Words can be slanted, and while pictures can also be slanted, it is rather difficult. At the same time the Government and the public have an interest in knowing the truth where the truth is necessary to enforce the law. I can conceive of circumstances where a news photographer might actually take the picture of a man committing a murder. Mr. HAMER. Yes, sir, indeed. Senator ERVIN. And even though the photographer never prints that picture I can conceive that the offer of that picture in evidence might be essential to bring the murderer to justice. And it might be the only way that the murderer could be identified. I have got an open mind on this subject, because I see much to be said on both of these conflicting public interests-the search for truth, but for two different purposes. I wonder whether we should have a rigid statute creating a privilege similar to that of a lawyer and client relation and that of a physician and patient relation, or whether we had better leave it to the courts to work out the first amendment so as to decide in a specific case which one of these interests ought to prevail over the other. The need for a statute such as you recommend would be either greatly increased or greatly diminished by the future decision of the Supreme Court in Caldwell and two other cases that are being considered by the Court in its present session. I think the court of appeals in the Caldwell case worked out a very good adjustment for that particular factual situation. They held that Caldwell, a reporter from the New York Times, could not be compelled to go before a grand jury because it did not appear that there was any overriding public necessity for the grand jury to obtain his testimony, and there was no evidence that they could not obtain what they were seeking from other sources. But the subcommittee-and I think the Congress as well-certainly should give serious consideration to the proposal made by Senator Pearson and his cosponsors, and also to your proposal that this privilege be extended to news photographers in addition to those who gather the news by other means. Mr. HAMER. Yes, sir. If I may be permitted to make a point on the lawman and his photography, certainly we are in a complete agreement that there must be peace in the community, that law enforcement is a very necessary thing to any community. And certainly we recognize the value of photographs taken by law enforcement personnel to identify people in public disturbances, for example, for future prosecution. But we do not believe that newsmen, news photographers, should be cast in this role of gathering this particular information. Similarly, we have no objection to law enforcement personnel working in these situations taking photographs as long as they are not identified as newsmen. We believe that news photography puts the newsman in the middle, so to speak. He is the representative of the public at a given scene. And his first responsibility is to that public through the photographs that he takes. Certainly any published or broadcast photographs which are in the public domain, as it were, are available under all circumstances for law enforcement purposes, and we have no objection to that. Senator ERVIN. When I practiced law I found a value for photographs in evidence. I won one case because my client, who had got in an automobile accident, was an amateur photographer, and he always carried a camera along with him. He was involved in a head-on collision with another car and immediately photographed both cars after the impact. The photograph showed that both of the cars were over on the extreme side of the road. When the other man brought a suit claiming he was entirely on the opposite side of the road, the photograph proved the truth of the situation and won the case. I certainly am a great believer in the validity of the Chinese proverb which I quoted. Mr. HAMER. So are we, sir. Senator ERVIN. Senator Thurmond. Senator THURMOND. Thank you, Mr. Chairman. I have no questions. We are glad to have you with us, Mr. Hamer. Mr. HAMER. Thank you, Senator. Senator ERVIN. Thank you very much. Your testimony has been very helpful. The subcommittee will stand in recess until 10 o'clock tomorrow. (Whereupon, at 12 noon, the subcommittee was adjourned until Wednesday, October 13, 1971, at 10 a.m.) 76-387-72- -12 FREEDOM OF THE PRESS WEDNESDAY, OCTOBER 13, 1971 U. S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE Washington, D.C. The subcommittee met, pursuant to recess, at 10:10 a.m. in room 1202, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding. Present: Senator Ervin, Hruska, and Thurmond. Also present: Lawrence M. Baskir, chief counsel; and Bill Pursley, counsel. Senator ERVIN. The subcommittee will come to order. Today the subcommittee will hear testimony from authorities in constitutional law and constitutional history and from an editor and a president of two Midwestern newspapers. The appearance of these witnesses emphasizes the subcommittee's interest both in reexamining first amendment principles and in considering the practical problems associated with freedom of the press in America. In my judgment, there can be no more important endeavor than a study of the original understanding of the First Amendment's guarantee of freedom of the press. While there have been vast and unexpected developments in every area of American life, including communications, since 1791, the principles of free thought, free speech, and free press remain the foundation of our democratic system. A renewed commitment to these principles is the surest way to secure their continued vitality. If these hearings do no more than encourage Americans to reconsider these First Amendment principles and their relationship to a free society, they will have served a noble purpose. you have any statement? Senator Hruska, do Senator HRUSKA. I have no statement, Mr. Chairman, but I have a unanimous consent request. I received in the mail jointly with my colleague, Senator Curtis, a letter and a resolution from the Nebraska Broadcasters Association. The resolution bears on the general subject about which we are making inquiry. I ask that it be inserted in the record at an appropriate point. Senator ERVIN. That will be done. (The letter and resolution referred to follow.) (171) |