FREEDOM OF THE PRESS

THURSDAY, OCTOBER 14, 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 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding.

Present: Senator Ervin.

Also present: Lawrence M. Baskir, chief counsel; Bill Pursley, counsel; and Stanley Ebner, minority counsel.

Senator ERVIN. The subcommittee will come to order.

Counsel will call the first witness.

Mr. BASKIR. Mr. Chairman, our first witness this morning is Mr. Elmer Lower, president of ABC news.

Senator ERVIN. I am delighted to welcome you to this subcommittee. I wish to express to you the appreciation of the subcommittee for your willingness to appear and give us the benefit of your views in a field in which you have had much practical experience.

STATEMENT OF ELMER W. LOWER, PRESIDENT,

ABC NEWS, AMERICAN BROADCASTING CO.

Mr. LOWER. Thank you very much, Senator.

My name is Elmer W. Lower, vice president of American Broadcasting Co. and president of the ABC news department. We in the news profession owe a debt of gratitude to Senator Ervin as chairman and to the other members of this subcommittee for their foresight and concern in initiating and conducting this inquiry into the state of freedom of the press in America, and I am personally grateful for the opportunity to be present today to give you my views.

Before addressing myself to some particular dangers to freedom of the press which I have seen emerge in recent years, I would like to make some general observations.

The American system of government was founded upon a predominantly agrarian and homogeneous society. In the early days of the Republic, participatory democracy was a reality. Individuals could have a very direct impact on the decisions of government which affected their lives.

Today, America is a huge, highly complex, predominantly urban society. We are all aware of the feeling of frustration among millions of people who believe that our government today is distant and

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impersonal and indifferent to their needs and interests. President Nixon, in his state of the Union address this year, called for a new American revolution in which Americans would have a new chance to participate in their government.

Participation in government depends upon an informed public. An informed public requires a free press, a press free to ascertain what government does, and to explain, to evaluate and to criticize. Today we find cynicism about the press among minority groups and the youth in America. They see the press as the handmaiden of a monolithic establishment, reporting only what the establishment wants people to see and hear, incapable of telling it like it is. This mistrust of the press engenders a feeling of hopelessness, which raises the potential for violence in our society. Any attempt by the Government to intrude upon the editorial prerogative of the press contributes to this mistrust, to the view that the press is controlled by the vested interests.

We in broadcast journalism are keenly aware of this mistrust. The minority groups and the young people have not been reticent to criticize us. We have heard the criticism and we are emboldened by it to increase our vigilance as the eyes and the ears of the people in relation to their government.

We have also heard the criticism from many Americans who believe that we have been too responsive to dissent, that we have given too much exposure to the critics of American society, that we have contributed to a too-rapid, too-chaotic whirlwind of social change. Although I have not seen empirical data on the effects of broadcast journalism on social change, I have no doubt that radio and television have accelerated the pace of change. The term "future shock" applies to ideas as well as technology. The fact that we transmit the words, the pictures and the ideas that set in motion social change enhances our responsibility, but it does not alter the job of journalism. Our job is, and remains, to report what we see and hear as accurately, objectively, and fairly as we know how.

There are those who believe that because of the impact of television, television journalism should be controlled by the Government. I draw quite the opposite conclusion. It is precisely because television is the medium that most Americans turn to for most of their news that broadcast journalism must enjoy the fullest freedom from Government interference.

I am not one of those who thinks that the Founding Fathers meant by freedom of the press that only the machines-the hardware-which print words were to be free. Just as our Constitution has been construed as a flexible, organic document and has grown with our Nation, so must freedom of the press grow to meet the electronic revolution.

Freedom of the press does not mean that broadcasters should be immune from criticism. Quite the contrary. We recognize the need for criticism and the need for constant self-analysis. If we did not hear criticism, the silence would be a sure sign that we were not doing our job, that we were avoiding controversy. Controversy is the stuff of the social process and journalists are dutybound to report it, and to report it fairly. We journalists, by our very choice of profession, have a commitment to fairness. Even if fairness were not FCC

doctrine, it would be my personal doctrine-and I would implement it at ABC News. Fairness does not mean sitting down with a stopwatch and balancing newscasts on a minute-by-minute basis. It does not mean that every statement which is not incontrovertible fact must be balanced with alternative interpretation. If that were the case, television news would be run by accountants, not journalists. Fairness does mean that to cover a controversy intelligently and responsibly requires that the major contending viewpoints be aired. Fairness does not mean that the Government, whether the FCC, Congress or the courts, has the right to substitute its editorial judgment for that of the broadcaster. If broadcast journalism is to be free, it must be free to criticize Government. It cannot be free if Government reserves the power to penalize the broadcaster for the way he reports the news. Even if the broadcaster's editorial judg ment were wrong, the remedy-Government interference-is far worse than the disease.

It is the prospect of Government interference into editorial judgment which disturbs me most about the recent controversy concerning "The Selling of the Pentagon." The use of the congressional subpena power to compel production of untelevised material is the first specific danger to freedom of the press which I would like to dis

cuss.

I do not question the motives of the Congressmen who investigated "The Selling of the Pentagon." In fact, I am sure they were sincere in their convictions. I do question the wisdom of Government investigating journalistic efforts which criticize Government. If journalists were required time and again to troop down to Washington, lawyers in tow, to justify news reports and editorial judgments, I could envision a process by which fear and excessive caution would enter the news gathering process. The reporter would tend not to report unless he could back it up with affidavits at some future congressional inquiry.

The plain fact is that the journalist and newsmakers, whether they be administration officials, Congressmen, critics or whomever, are adversaries in a very real sense. The newsmaker may be a salesman for a viewpoint. The journalist is trained to strip away sales talk and report the facts as he sees them, not necessarily as the newsmaker would like them to be reported. The journalist is the guardian of the public's right to a free flow of information. It is the public that suffers if the congressional subpena becomes a condition to exercising freedom of the press.

We recognize that the First Amendment was not designed to create a privileged profession of writers and speakers. It was designed to insure that the public would receive the information it must have for public opinion to function intelligently. The rights of newsmen are not personal rights. They are rights held in trust to the public. We recognize the enormous responsibility of this public trust. We recognize that the information we transmit and the views we expose are the foundation on which opinions are reached and social action is predicated. Our responsibility is to report accurately and objectively and to give fair exposure to the conflicting views that contend for public support. Our responsibility is to be ever on guard that

our personal bias-since we all have personal bias-does not obstruct our professional dedication to this task. My experience has been that in the vast majority of cases newsmen have been true to this responsibility. Of course, there have been and there always will be exceptions. But in my view, reliance on a free press to act responsibly is far better than reliance on an agency of Government to say what can or cannot be printed or broadcast.

A second danger to free press, related to the congressional subpena power, is the potential power of the courts if used to compel disclosure of unpublished information or sources of information.

The journalist must preserve his confidential sources of information. He relies heavily on sources and contacts who will only speak off-the-record and only under the pledge of anonymity. It is no secret that the journalist, especially the journalist who covers politics, often has to fight for information. Newsmakers in many instances like to keep the lid on embarrassing information, regardless of the public interest in disclosure. Without the confidential source, the journalist would often be relegated to reading between the lines of self-serving handouts. The confidential source also multiplies the journalist's eyes and ears. If he had to personally ferret out every story from scratch, the journalist would gather much less information. The confidential source also provides the journalist background information which is invaluable in evaluating the events he reports. Often, the source risks his job, his status, perhaps his life, if his identity is revealed. Our foreign correspondents report from many countries where the flow of information is regulated in greater or lesser degree. Confidential sources become even more crucial in reporting the news from countries where news is regulated.

If the journalist is forced to betray information obtained in confidence, whatever the immediate short-term gain for law enforcement, the long-term effect is to dry up valuable sources of information and to severely restrict the flow of information to the public. One or two instances of forced disclosure can have a snowball effect. If a source has to wonder whether a reporter will protect his identity, it does not stretch the imagination to foresee the damaging consequences to the flow of information. The source will simply cease to be a source. There is another reason why we oppose the subpenaing of unpublished material. When outtakes are used in court to prosecute a news subject, the broadcaster becomes identified with the law. It does not matter that he is acting under court order. In the eyes of his sources, he has betrayed his objectivity and has become an arm of the law. He is not to be trusted. He is a tool of the establishment. The danger here again is a drying up of news sources. The danger is a breakdown of lines of communication to the disaffected groups in our society-members of minority groups, young people, and people from all walks of life who hold unpopular views. We at ABC News have had experience on at least one occasion when a news source told us it would not cooperate for fear that outtakes would be subpoenaed and used against it. For every source who tells us why he will not cooperate, there are I'm certain many more who don't tell us why, but who clam up out of the same fears.

Defendants in criminal actions also use the subpena power to compel unpublished information and this is equally troubling to us

because it has the same effect of compromising the objectivity of the journalist. Our believability suffers when we appear to the public to be supporting or opposing an individual or a cause.

There may be limited circumstances in which the interest in the fair administration of justice outweighs the harmful effect of free press. An example would be evidence of a violent crime directly bearing on guilt or innocence which is unavailable from nonpress sources. Absent unusual circumstances such as these, we believe that the first amendment protection for untrammeled communication should prevail.

A third area of danger to free press which I would like to address myself to is the use of press credentials as a "cover" by investigators and others. We have found that this practice is widespread, and is used not only by law enforcement authorities but also by members of radical groups who use it for their own purposes to obtain access to meetings, rallies and other forums. When phony press representatives act irresponsibly, the reputation of the press suffers, and so does the believability of what we report. It becomes more difficult to gather information and more difficult to communicate it. Once the newsmaker is burned by granting access to the phony journalist, he may in the future deny access to the legitimate journalist. Any practice, such as the use of phony credentials, which undermines confidence in the medium of communication will in the long run aggravate social conflict.

Finally, I would like to comment on the limitations on free press which arise out of national security classification, a problem which was brought into focus by the Pentagon papers controversy. I will not comment on the facts of that particular case except to say that I was personally gratified by the conclusion of the Supreme Court. that the unproven potential damage to national security did not justify prior restraint. The lesson to be gained from the Pentagon papers controversy is that our security classification system is in many ways antiquated and subject to abuse. A system which overclassifies as a rule and which makes no real effort at regular declassification review is inconsistent with a participatory democracy. It removes from public scrutiny and debate more than is required by national security interests. It is contemptuous of the public's right to know.

Statistics give us a good idea of the magnitude of the problem. We have been informed by an authoritative source that 125 million pages of World War II documents and 25 million pages of Korean War documents are still classified secret or higher.

It is no surprise that one widespread reaction to the Pentagon papers controversy was cynical distrust of government. In my view, this reaction was based as much on the Government attempt to prevent publication as on what the Pentagon papers had to say. After all, how many people read even part of the voluminous documents. The attempt to prevent publication confirmed the belief held by many of our citizens that the Government had something to hide, that it suppressed the truth. This belief aggravates the feelings of frustration that the President spoke about in his State of the Union address.

Most often in this country it seems that we assign priorities on the basis of the immediate, highly visible crises we confront. In the need