THE NEWSMAN'S PRIVILEGE

INTRODUCTION

The press appears to be engaged in a drive to achieve the enactment, on the Federal level, of the "newsmen's privilege." As the result of two previous drives, one in the 1930's and another about 1949-50, some 12 States have adopted the proposal but as many, if not more States have refused its adoption. Three bills have been introduced in the 86th Congress proposing its adoption by the Congress and numerous requests for information about the proposal have been received by this Service. The following study is designed to provide information concerning the proposal, its background and its legal effect.

I. THE PROPOSED PRIVILEGE

The provisions generally proposed for enactment usually run about the same. There are differences in details but the main outline is the same in all cases, those enacted in the 12 States and those proposed for enactment by the Congress. They would permit a newsman to reveal whatever he desires by way of information imparted to him but would protect him from enforced revelation, either in the courts or the Congress, of the source from which the information was obtained. The following language is typical of the proposals:

(A) A witness who is employed by a newspaper, news service, newspaper syndicate, periodical, or radio or television station or network, as a writer, reporter, correspondent, or commentator or in any other capacity directly involved in the gathering or presentation of news, shall not be required in any court of the United States to disclose the source of any information obtained in such capacity unless in the opinion of the court such disclosure is necessary in the interests of national security.

(B) No witness who is employed by a newspaper, news service, newspaper syndicate, periodical, or radio or television station or network, as a writer, reporter, correspondent, or commentator, or in any other capacity directly involved in the gathering or presentation of news, shall be required before either House of Congress or before any joint committee established by Congress or any committees of either House of Congress, to disclose the source of any information obtained in such capacity unless, in the opinion of a court of the United States, such disclosure is necessary in the interest of national security.

The enactment of such provisions will have the legal effect of excusing newspapermen covered by the bill when called as a witness before either a court of the United States or either House of Congress or any congressional committee from the requirement of disclosing the sources of any information obtained in that capacity, unless such disclosure is considered necessary in the interest of national security.

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II. THE POWER OF CONGRESS TO CHANGE THE RULES OF EVIDENCE

The proposal is no more or less than to bestow upon a newsman the right to assert that information concerning the source of his information is privileged and may not be elicited from him by any court or the Congress of the United States. Under the rules of evidence witnesses are required to answer all questions propounded to them while testifying. There are certain well-defined exceptions, however. Among those exceptions are "privileged communications," i.e., communications between one person and another such as between attorney and client. The reason for the existence of these exceptions is that society over the centuries has fostered the social relationships in which these people stand. It has become recognized at law that the injury done to them which would result from enforced disclosure of confidential information, would be far greater than the loss to justice occasioned by granting the privilege.

Neither in Federal practice nor at common law has the newsman ever been granted the privilege of refusing to reveal the source of his information. Notwithstanding this fact, may Congress cha ge the rules of evidence to extend such a privilege to him? An examination of the power of Congress to change the rules of evidence follows:

1. SEPARATION OF POWERS

The Constitution of the United States in establishing the Federal Government provided for three separate but coordinate departments of the Government-legislative, executive, and judicial. That instrument lodged legislative power in the Congress of the United States (art. I, sec. 1); executive power in the President of the United States (art. II, sec. 1); and judicial power in one Supreme Court and in such inferior courts as the Congress might from time to time ordain and establish (art. III, sec. 1). The power so lodged by the Constitution in the courts has been described as: "The power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision." Miller: "Constitution" (p. 314); Muskrat v. U.S., 219 U.S. 346, 356 (1911); Adkins v. Children's Hospital, 261 U.S. 525, 544 (1923).

The separation of powers by the Constitution between the three branches of Government prevents any one of them from exercising the power lodged in the other two. If a function is strictly judicial it can neither be assumed by the Congress nor delegated to an executive officer, Tilbourn v. Thompson, 103 U.S. 168 (1881): neither can an appeal from the exercise by a court of a judicial power be taken to one of the other two branches; Andres v. Hovey, 124 U.S. 694, 717 (1888); Prigg v. Pennsylvania, 16 Pet. 539, (1842). That Congress may not interfere with a strictly judicial function is indicated by the fact that the act of July 12, 1870 (16 Stat. 230, 235), which attempted to prescribe the effect to be given by the courts to a Presidential pardon was held unconstitutional; U.S. v. Klein, 13 Wall. 128, 147 (1872); James v. Appel, 192 U.S. 129 (1904). Similary, the act of August 11, 1888 (25 Stat. 400, 411), by which Congress undertook to fix a rule for the determination of the compensation to be given for property taken for public use was held unconstitutional. Monongahela Nav. Co. v. U.S., 148 U.S. 312 (1893).

2. THE POWER OF CONGRESS OVER THE FORMS OF PROCEDURE

While Congress may not interfere with the exercise by the courts of purely judicial power, it may prescribe the forms of proceedings, either in equity or at law, in the courts of the United States under the authority of article III, section 1, which authorizes the Congress to establish inferior courts. That it may do so was recognized in Livingston v. Story, 9 Pet. 632, 655 (1833), which dealt with the establishment of such Federal courts in Louisiana on that State's admission to the Union. The court stated:

That Congress has the power to establish circuit and district courts in any and all the States, and confer on them equitable jurisdiction, in cases coming within the Constitution, cannot admit of a doubt. It falls within the express words of the Constitution. "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish" (art. 3). And that the power to ordain and establish, carries with it the power to prescribe and regulate the modes of proceeding in such courts, admits of as little doubt. And, indeed, upon no other ground can the appellee, in this case, claim the benefit of the act of 1824 (4 U.S. Stat. 62). The very title of that act is, to regulate the mode of practice in the courts of the United States, in the district of Louisiana; and it professes no more than to regulate the practice. It declares, that the mode of proceeding in civil causes, in the courts of the United States, that now are, or hereafter may be, established, in the State of Louisiana, shall be conformable to the laws directing the mode of proceeding in the district courts of said State.

Likewise in Ex parte The City Bank, 3 How. 292, 317 (1845) the Supreme Court stated:

But it is objected, that the jurisdiction of the district court is summary in equity and without appeal to any higher court. This we readily admit. But this was a matter for the consideration of Congress in framing the act. Congress possesses the sole right to say what shall be the forms of proceedings, either in equity or at law, in the courts of the United States; and in what cases an appeal shall be allowed or not. It is a matter of sound discretion, and to be exercised by Congress in such a manner as shall in their judgment best promote the public convenience and the true interests of the citizens. Because the proceedings are to be in the nature of summary proceedings in equity, it by no means follows, that they are not entirely consistent with the principles of justice and adapted to promote the interest as well as the convenience of all suitors. Because there is no appeal given, it by no means follows, that the jurisdiction is either oppressive or dangerous. No appeal lies from the judgments either of the district or circuit court in criminal cases; and yet within the cognizance of one or both of those courts are all crimes and offenses against the United States, from those which are capital down to the lowest misdemeanors, affecting the liberty and the property of the citizens. And yet there can be no doubt that this denial of appellate jurisdiction is founded in a wise protective public policy. The same reasoning would apply to the appellate jurisdiction from the decrees and judgments of the circuit court, which are limited to cases above $2,000, and cases below that sum embrace a large proportion of the business of that court.

See also: Fidelity and D.C. Co. v. U.S., use of Smoot, 187 U.S. 315 (1902) and Lamaster v. Keeler, 123 U.S. 376 (1887).

3. THE MODES AND FORMS OF PROCEDURE INCLUDE THE RULES OF EVIDENCE

Blackstone defines evidence as: "that which demonstrates, makes clear, or evidences the truth of the very fact or point in issue, either on one side or the other," 31 Bl. Com. 367. Hence, evidence as procedure, embraces those rules of law by which it is determined what testimony is to be received on the trial of an issue, what rejected, and the weight to be given that which is received. People ex rel. Foote

v. Clark, 283 Ill. 221, 119 N.E. 329. Its function is to narrow down the matter which comes before the trier of fact to those matters which have a logical probative value in determining the guilt or innocence of the accused, Wharton's Criminal Evidence, vol. 1, p. 10. The rules of evidence then are modes and forms of procedure, i.e., the mode and forms by which the ultimate truth of the guilt or innocence of the accused is to be determined. The power to change the rules of evidence is lodged in the State legislature respecting State courts, Ogden v. Saunders, 12 Wheat. 213 (1827); Salsburg v. Maryland, 346 U.S. 550 (1954).

4. LIMITATIONS UPON THE POWER TO CHANGE RULES OF EVIDENCE

Although Congress unquestionably has the power to change the rules of evidence in the Federal courts, such power is not unlimited. Changes in rules of evidence may not be made which violate the constitutional rights of the parties, nor would it seem that Congress could exercise such power to bring about an arbitrary result or one beyond the rules of reason.

The Supreme Court in Tot v. U.S., 319 U.S. 467-469 and 473 (1943) stated:

The rules of evidence, however, are established not alone by the courts but by the legislature. The Congress has power to prescribe what evidence is to be received in the courts of the United States. The section under consideration is such legislation. But the due process clauses of the 5th and 14th amendments sets limits upon the power of Congress or that of a State legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated. The question is whether, in this instance, the act transgresses those limits.

See also Crane v. Hahlo, 258 U.S. 147 (1922), Ex parte Collett, 337 U.S. 71 (1949) to the effect that no one has a vested right in any mode of procedure.

5. CONGRESS AND THE PRESENT RULES OF PROCEDURE

By the act of June 29, 1940 (54 Stat. 688) the Congress authorized the Supreme Court of the United States to prescribe the rules of criminal procedure in the U.S. district courts. The act stated:

Be it enacted ***That the Supreme Court of the United States shall have the power to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings prior to and including verdict, or finding of guilty or not guilty by the court if a jury has been waived, or plea of guilty, in criminal cases in district courts of the United States, including the district courts of Alaska, Hawaii, Puerto Rico, Canal Zone, and the Virgin Islands, in the Supreme Courts of Hawaii and Puerto Rico, in the United States Court for China, and in proceedings before United States Commissioners. Such rules shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session, and thereafter all laws in conflict therewith shall be of no further force and effect.

The rules as prescribed were transmitted to the Attorney General of the United States on December 26, 1944, 327 U.S. 823; he in turn submitted the same to the Congress on January 3, 1945, 327 U.S. 824. They became effective on March 21, 1946, 327 U.S. 821. Among those which then became effective was rule 26 which deals with wit

nesses and the admissibility of testimony. The Federal Rules of Civil Procedure underwent a similar process of adoption starting with the act of June 19. 1934 (48 Stat. 1064). In the Civil Rules, rule 43 (a) covers the subject matter of this paper.

6. FEDERAL RULES 26 AND 43(A)

Rule 26 of the Federal Rules of Criminal Procedure (United States Code 18: app.) provides:

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an act of Congress or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

Thus the privileges of witnesses are governed by the common law unless otherwise provided by act of Congress or the rules. Since no act of Congress or court rule has been adopted, the privileges of witnesses in Federal criminal cases are governed by the common law as interpreted by the courts. See Blau v. U.S., 340 U.S. 332; Wolfe v. U.S., 291 U.S. 7; Rosenberg v. Carroll, 99 F. Supp. 629 (this case was on newsmen's privilege).

Rule 43(a) of the Federal Rules of Civil Procedure (United States Code 28: App.) provides:

(a) Form and Admissibility.—In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the State in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competancy of a witness to testify shall be determined in like manner. The privileges of witnesses under this rule are therefore governed by the statutes of the States in which the particular court sits. This rule has been commented on generally (see commentaries at end of the rule in U.S.C.A.) as causing uncertainty:

The primary purpose behind rule 43(a) is the removal of uncertainty concerning the source of the Federal law of evidence. This purpose has been only partially accomplished. Uncertainty as to the choice of precedents required by the Conformity Act (28 U.S.C.A. §§ 724, 726, 727) and the Rules of Decision Act (28 U.S.C.A. § 725) under a unified system of procedure has been replaced by uncertainty as to the choice of precedents required by [this] rule. A secondary purpose behind the rule is the modernizing and liberalizing of evidence law. 55 Harv. L. Rev. 212.

With respect to the newsmen's privilege, the Federal courts in States (12) which have recognized such privilege would also recognize such a privilege in civil cases. In the 37 States which do not recognize the privilege, the Federal courts would not recognize it either: see Conn. Mut. L. Ins. Co. v. Union Trust Co., 112 U.S. 250; Mut. Ben. L. Ins. Co. v. Robison (C.C.A. 8th) 58 F. 723; Ex parte Sparrow, 14 FRD 351. (This case was on newsmen's privilege.)