Senator ERVIN. You define the public scholar quite well on page two of your statement as a trained observer and analyst of the operations of government who communicates his findings to the public. This was a simpler function when society was not as complex. As you point out, since society has become so much more complex, those who gather public news are in a rush to meet deadlines and do not always consider the meaning and the implication of the policies of government. For that reason, the public scholar renders a real service in furthering the purpose of the first amendment. That is the objective of your institution, is it not?

Mr. BARNET. Yes, Mr. Chairman, I agree with that completely. But I do want you to understand that in no way am I downgrading the daily press, because in many ways, they are doing an impressive job of investigating. But the fact is that they are covering many, many areas, where it is simply impossible to do the kind of investigation that is necessary given their pressures.

Senator ERVIN. You recognize do you not, that government has an interest in manufacturing the news, so as to make it appear that its policies and activities are the most desirable for the Nation. In an effort to do this, government supplies many persons who in essence are public relations people-with many handouts. The temptation is great for a news gatherer to use one of these handouts even though he had not investigated the matter.

Mr. BARNET. That is right, Mr. Chairman, and of course the Vietnam war has had an absolutely disastrous effect. I know that very often in the early days of the Vietnam war, it was a common thing for the press to accept a handout that told us that such and such villages were secure. It was a good deal easier, and safer, to take their word for it, rather than to go out and visit the village.

Senator ERVIN. And so, some of these handouts were absolutely untrue, and did not reveal all the truths.

Mr. BARNET. That is true in the case of the handouts that I just referred to.

Senator ERVIN. Even concerning existing policies, after the Government had formulated and carried out a given policy, it would endeavor to present that activity in the most favorable light and suppress anything about it they did not want known.

Mr. BARNET. That is correct, sir. My example in the statement, the State Department, was that the administration seemed interested in concealing the maximum amount possible.

Senator ERVIN. I think there is one other thing-Government is very reluctant to release information that puts it in a bad light.

Mr. BARNET. Yes, sir, that is absolutely correct. We have seen many examples of this, particularly in connection with the Defense budget. It is very common, as you know, around the time of the budget hearings to receive reports of new secret weapons, and great increases in Soviet arms, which allegedly come from secret docu

ments.

Senator ERVIN. That is something which those of us who are here on the Washington level-something that we feel very strongly about, that a man who Government employs, who hears things about his department-from which information comes, is

Mr. BARNET. Yes.

Senator ERVIN. You say in an ideal world or in an ideal society, Government officials or Government employees converse freely with public scholars who are conducting investigations. The public scholars would receive information freely from the employee. The employee could also discuss matters on a confidential basis with the assurance that his identity will not be disclosed.

Mr. BARNET. That is right.

Senator ERVIN. So in your quest for information regarding a particular document or Government policy, you receive much information from sources which would cease to be available to you, if you were compelled to reveal their identity.

Mr. BARNET. That is right.

Senator ERVIN. It is your position that any proposal or legislation concerning sources of information of the public scholar should be under the first amendment.

Mr. BARNET. Mr. Chairman, it is my opinion that the first amendment does now, and of course should cover confidential sources of information, for both news media and all persons who are in the business of investigating and communicating information to the public.

Senator ERVIN. As you see it as the late Justice Black stated— the first amendment is absolute in nature. I believe the current interpretation is that the only time it is not absolute is when the Government can demonstrate an overriding public interest or when a criminal prosecution is involved. There is undoubtedly a first amendment interest in the gathering of information and in the dissemination of truth. Government has an interest in enforcing laws which are necessary to protect society, including the first amendment. People often must seek some way to reconcile, as far as possible, both these interests. So we must consider that problem also.

Mr. BARNET. Yes, sir, that is true, and I can certainly see a number of situations where the conflicts occur. But I think in the area that we're talking about-the protection of confidential sources of newsmen and public scholars serves the best interest of the public. Senator ERVIN. I want to thank you for your very fine contribution to this hearing.

Mr. BARNET. Thank you very much.

Senator ERVIN. This hearing is recessed, and will reconvene tomorrow, at 10 o'clock in room 318, Old Senate Office Building. (The hearing was then duly closed at 12:50 p.m.)

76-387-72-6

FREEDOM OF THE PRESS

THURSDAY, SEPTEMBER 30, 1971

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10:05 a.m., in room 315. Old Senate Office Building, Senator Sam J. Ervin, Jr., presiding. Present: Senators Ervin, Kennedy, Hruska, and Scott.

Also Present: Lawrence M. Baskir, chief counsel, and Bill Purslev, counsel.

Senator ERVIN. The subcommittee continues today to focus upon the relationship between Government and the broadcast media. Assisting us in this connection is one of America's most outstanding broadcast journalists, Mr. Walter Cronkite.

In addition, the subcommittee is indebted to Professor Jerome Parron of the George Washington Law School, and Mr. Lawrence Leamer, former associate editor of Newsweek magazine, for appearing before the subcommittee today upon very short notice.

I regret that Professor Philip Kurland and Mr. James J. Kilpatrick, could not be with us today because of personal considerations. Both of these gentlemen have asked to be rescheduled in the hope they can appear before the subcommittee during these hearings.

At the conclusion of today's testimony, this series of hearings of freedom of the press will recess until October 12. At that time, we will resume our consideration of this important subject and continue on October 13, 14, and on October 19 and 20.

I understand that Senator Hruska would like to make a statement at his point. Senator Hruska.

Senator HRUSKA. These hearings on "Freedom of the Press" come at a time when there are more critical issues facing the Nation than at Ay other. The rights and responsibilities of the press are near the top of that list.

Today, as never before, the American people dote on the news. More ople want to know more of what is going on, and more are willing take the time to find out. To satisfy this urge people must naturally ely on the news media. The freedom which our Founding Fathers toperly gave to the press thus takes on dimensions inconceivable to e drafters of the first amendment. Radio, television, satellites, the rails, and mass distribution of the printed word have combined to give the news media awesome power and authority in the affairs of the Nation.

This Senator would be among the first to praise the media for the general way in which they have accepted and met the responsibility

which goes with this power. As Mr. Isaacs stated on the opening day of these hearings, the press has its faults and makes mistakes. I would agree, however, that these are primarily due to limitations in time and space as well as just plain human error.

Nevertheless, the subject at hand is most deserving of the kind of study the chairman has laid out. The Government's attitude toward the press should be clarified, and the need for legislation such as Senator Pearson's bill (S. 1311) must be carefully analyzed. At the same time, the responsibility of the press should be examined very closely. It is not alone for the media to tell the people how and what it is doing. I believe this type of inquiry by public officials who are directly responsible to the people through the ballot box is essential. While it is understood that one of the news media's most important functions, as conceived by the first amendment, is to provide a check on government, less understood are the controls on the checkers. How absolute is the first amendment? Must we indeed tolerate abuses in the name of freedom? Is prior restraint of the press ever permissible or desirable? Is there a need for a reporter-confidant relationship? Is there a way to eliminate bias in the press without circumscribing its freedom?

The sensitivity of this subject should not deter us from exploring it fully, and on every side. I am sure the people would like to be educated in the various levels of judgment brought to bear on a news article before it reaches publication. Undoubtedly there are many who would like to go behind the scenes to watch a television network's activities as it puts together its daily news program which will be watched and, in many cases, taken as gospel by millions of Americans. This has been done in other ways and at other times, but I believe some further exploration by this subcommittee would be highly

valuable.

The chairman is to be commended for scheduling these hearings, and for his usual forthright approach to the subject. This list of witnesses is impressive. Their contribution to our goal will be most helpful, I am sure. As elected officials, we of the Subcommittee must make our contribution as well. Our interest is manyfold. The majority of my constituent mail is motivated by articles in the press or by news reports on radio and television. These accounts make it plain that often we see the news one way and the media another. But this Senator happens to be a subscriber to the views of a former President who observed that one in public life should depart from the kitchen when the temperature rises too high for his comfort.

I would like to finally observe at this time that a critical examination of the press and its responsibilities does not constitute an attack on the first amendment. This bulwark against oppression should not be used as a shield against valid criticism. I am confident that the Chairman shares this view-his opening statement for these hearings makes it plain that he agrees.

There are 90 million television sets in 95 percent of American homes, and countless radios. In 1969 some 62 million newspapers were sold daily. As we say in the legal profession, res ipsa loquitur-the thing speaks for itself.

Senator ERVIN. Mr. Cronkite, I want to welcome you to the subcommittee and express our deep appreciation for your willingness to