Under this proposal, the newsmen's privilege to maintain the confidentiality of his news sources is subject to reasonable qualifications: First, the privilege does not apply to the source of any allegedly defamatory information in a case where the defendant, in a civil action for defamation, asserts a defense based upon the source of such information. Second, the privilege shall not apply to the source of any information concerning the details of any grand jury or other proceeding which was required to be secret under the laws of the United States. Finally, the bill establishes procedures for divesting the privilege when there is substantial evidence that disclosure of information held confidential by the newsman is required to prevent a threat to human life, of espionage, or of foreign aggression. Mr. Chairman, the Newsmen's Privilege Act is of special significance to me, because it was first introduced in Congress by one of my distinguished predecessors, the late Senator Arthur Capper. Senator Capper served Kansas and the Nation for 40 years in the seat which I now have the honor to occupy. As owner and publisher of the Topeka Daily Capital, Capper's Farmer, Capper's Weekly, Household Magazine, and other publications, as well as owner of two radio stations, Mr. Capper understood as few men do the particular requirements of the press and the reading public. Senator Capper's bill, introduced as S. 2175 on October 30, 1929, exempted newspapermen from testifying with respect to the sources of confidential information obtained in the course of newsgathering. The only exception to the privilege involved information held by newsmen on acts of treason. The issue presented by the Newsmen's Privilege Act was an important one in 1733, when John Peter Zenger began publication of the New York Weekly Journal. Zenger was charged with making "false, scandalous, malicious and seditious publication" of information critical of the Governor of the Province. He chose jail rather than reveal his confidential sources. The issue remains an important one today. Dozens of cases have been collected, both reported and unreported, in which newsmen have been cited for contempt because they have insisted that the identity of their sources is privileged information. Mr. Chairman, I am convinced that newsmen have a constitutional right to keep confidential their sources of information. It is a curious state of affairs when newsmen, in exercising their right to be a part of a "free press," must, from time to time, serve terms in prison for contempt of court. I believe the exercise of a constitutional right cannot be contemptuous of Federal courts, or any other arm of the Federal Government. The Newsmen's Privilege Act of 1971 will serve to perfect the promise our Founding Fathers made, that men cannot be free without a free and uninhibited press to serve them. III. Department of Justice guidelines, recent Federal court decisions, and State action to create a newsmen's privilege. The Honorable John N. Mitchell, Attorney General of the United States, delivered a major address on freedom of the press before the House of Delegates, American Bar Association, on August 10, 1970, the Attorney General discussed "the current controversy involving subpoenas to the press media for information that may be of some use in court proceedings." "This is one of the most difficult issues I have faced as Attorney General," Mr. Mitchell admitted. "It is difficult constitutionally and it is difficult administratively." The Attorney General correctly stated that the Supreme Court has never held newsmen to have a First Amendment right to protect their confidential sources of the news. Nevertheless, he took the opportunity to announce "Department of Justice Guidelines for Subpoenas to the News Media," which I am submitting as an Appendix to these remarks. The First Guideline states, "The Department of Justice recognizes that compulsory process in some circumstances may have a limited effect on the esercise of first amendment rights." The Guidelines are considered by the Department as an "interim measure." Attorney General Mitchell called for an "immediate and comprehensive study of the fair trial-free press issue as it affects the controversy over subpoenas to the press." And the Attorney General concluded, saying he "would not oppose legislation granting some form of reporter-informant privilege." That legislation, Mr. Chairman, is before your Subcommittee at this time. Because the Congress is equipped to balance the interests of the First Amendment against the interests of the United States in the administration of justice, no less than the courts, I urge that the Newsmen's Privilege Act be considered carefully for favorable Congressional action. The United States District Court for the Northern District of California, and the United States Court of Appeals for the Ninth Circuit, held recently in the case of Earl Caldwell that newsmen have a First Amendment right to protect from grand jury inquiry their confidential sources of the news. This holding has not been appealed by the Government to the United States Supreme Court. Writ of Certiorari was granted by the Supreme Court to decide whether Caldwell-a newsman who has contacts in the Black Panther Party-may be compelled constitutionally to appear before the grand jury at all. Finally, Mr. Chairman, it cannot go unnoticed that seventeen States have adopted, by statute, a newsmen's privilege to protect from forced disclosure confidential sources and-in some instances-confidentially-held information. There is ample precedent for such legislation, therefore, and in those States where the privilege has been effective for a number of years, there is no evidence to indicate that law enforcement officials and prosecutors have been hamstrung in ferreting out crime. Attorney General Mitchell's second Guideline asserts, "The Department of Justice does not consider the press 'an investigative arm of the government.'" This is an entirely appropriate expression of policy, but its enforcement depends upon discretion within the Department. Freedom of the press to gather news cannot rest upon the discretion of transitory public officials, regardless of good faith efforts to restrain more zealous subordinates. In seventeen States, Mr. Chairman, legislation has been adopted to insure that the press does not, in fact, become an unwilling "investigative arm" of the Government. The press cannot serve as an investigative organization for two masters: the Government and the public. Government has the means to hire its own investigators and informers. The public, in the final analysis, must depend upon the press. For 180 years under the First Amendment mandate, the public has been served tolerably well. We have an opportunity, in this Congress, to perfect First Amendment press freedom. I believe it is our duty to grasp that opportunity. Thank you. DEPARTMENT OF JUSTICE, Washington, D.C., September 2, 1970. Subject: Guidelines for Subpoenas to the News Media. To All United States Attorneys, The following guidelines for subpoenas to the news media are quoted from the address "Free Press and Fair Trial: The Subpoena Controversy" by the Honorable John N. Mitchell, Attorney General of the United States, before the House of Delegates, American Bar Association, at St. Louis, Missouri, on August 10, 1970. WILL WILSON, Criminal Division. First The Department of Justice recognizes that compulsory process in some circumstances may have a limiting effect on the exercise of First Amendment rights. In determining whether to request issuance of a subpoena to the press, the approach in every case must be to weigh that limiting effect against the public interest to be served in the fair administration of justice. Second: The Department of Justice does not consider the press "an investigative arm of government." Therefore, all reasonable attempts should be made to obtain information from non-press sources before there is any consideration of subpoenaing the press. Third: It is the policy of the Department to insist that negotiations with the press be attempted in all cases in which a subpoena is contemplated. These negotiations should attempt to accommodate the interests of the grand jury with the interests of the news media. In these negotiations, where the nature of the investigation permits, the government should make clear what its needs are in a particular case as well as its willingness to respond to particular problems of the news media. Fourth: If negotiations fail, no Justice Department official should request, or make any arrangements for, a subpoena to the press without the express authorization of the Attorney General. If a subpoena is obtained under such circumstances without this authorization, the Department will-as a matter of course-move to quash the subpoena without prejudice to its rights subsequently to request the subpoena upon the proper authorization. Fifth In requesting the Attorney General's authorization for a subpoena, the following principles will apply: A. There should be sufficient reason to believe that a crime has occurred, from disclosures by non-press sources. The Department does not approve of utilizing the press as a spring board for investigations. B. There should be sufficient reason to believe that the information sought is essential to a successful investigation-particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, non-essential or speculative information. C. The Government should have unsuccessfully attempted to obtain the information from alternative non-press sources. D. Authorization requests for subpoenas should normally be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information. E. Great caution should be observed in requesting subpoena authorization by the Attorney General for unpublished information, or where an orthodox First Amendment defense is raised or where a serious claim of confidentiality is alleged. F. Even subpoena authorization requests for publicly disclosed information should be treated with care because, for example, cameramen have recently been subjected to harassment on the grounds that their photographs will become available to the government. G. In any event, subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents. These are general rules designed to cover the great majority of cases. It must always be remembered that emergencies and other unusual situations may develop where a subpoena request to the Attorney General may be submitted which does not exactly conform to these guidelines. Senator ERVIN. The subcommittee will meet tomorrow in room 1202, New Senate Office Building, at 10 a.m. This committee stands in recess until that time. (The hearing was then concluded at 12:34 o'clock p.m.) FREEDOM OF THE PRESS WEDNESDAY, SEPTEMBER 29, 1971 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m., in room 1202, New Senate Office Building, Senator Sam J. Ervin, Jr., presiding. Present: Senator Ervin and Senator Kennedy. Also present: Lawrence M. Baskir, Chief Counsel, and Bill Pursley, Counsel. Senator ERVIN. The subcommittee will come to order. Today the Senate Subcommittee on Constitutional Rights continues its hearings on the subject of freedom of the press. One of the important purposes of these hearings is an examination of the first amendment implications of government regulation of the broadcast media. Great confusion surrounds the Federal statutes, regulations, and the few court decisions which affect broadcasting. In the course of these hearings, we will consider the rationale, the operation and the impact of this system of government regulation of broadcasting. One of our witnesses today is uniquely qualified to assist us in this effort. In view of the suspicion and fear which surrounds the relationship between the executive branch and the press, it is also the purpose of these hearings to examine the reasons underlying this suspicion and fear and the consequences of such a situation to the gathering and reporting of news. For these reasons, it was thought desirable to invite Mr. Herb Klein, Director of Communications for the executive branch, to testify. In my judgment, Mr. Klein would be able to assist greatly the subcommittee in examining the reasons for the antagonism and hostility which have developed between the present administration. and the press, and also to remove some of the misunderstandings that have fostered this situation. Unfortunately, Mr. Klein has informed me that he will not be able to testify. Mr. Klein wrote "as a member of the immediate staff of the President, I must respectfully decline the invitation to testify." His decision not to appear seems to reflect a tendency on the part of the executive branch to assert a form of executive privilege even when it is not necessary, and even when it is detrimental to the interests of the administration. We invited Mr. Klein to testify because many questions have been raised about the administration's attitude toward the press. We wish to give the administration an opportunity to respond to the charges that have 76-387-72-—- 1 |