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 been made against it, and to provide the administration with a forum to present its side of the controversy. A dialogue requires both points of view, and a major purpose of these hearings-to try to eliminate the distrust and animosity that exists between the administration and the press-will not be accomplished if one side refuses' to present its views. I am mindful of the importance the administration attaches to executive privilege, but I do not think it requires that all invitations to testify-even friendly invitations-be turned down. It should not preclude a voluntary appearance before a Senate committee. I hope Mr. Klein or another representative of the administration will take advantage of this opportunity to improve the country's understanding of the administration's attitudes and policies in the area of public information and freedom of the press. Counsel, call the first witness. Mr. BASKIR. The Honorable Ogden R. Reid, a representative in Congress from the 26th Congressional District of New York. STATEMENT OF HON. OGDEN R. REID, A REPRESENTATIVE IN CONGRESS FROM THE 26TH CONGRESSIONAL DISTRICT OF THE STATE OF NEW YORK Senator ERVIN. Congressman Reid, I am delighted to welcome you to the subcommittee. We appreciate your willingness to appear and to express your views on this subject. Mr. REID. Thank you. Mr. Chairman, may I say that I am honored and delighted to have this opportunity to appear before your distinguished subcommittee this morning to share with you briefly my thoughts on the vitally important subject of freedom of the press. There is hardly a more relevant or timely inquiry before any committee of the Congress, and I commend you, Mr. Chairman, for your strong leadership in calling these hearings. I noted a speech of yours recently before the Association of American Publishers, and one paragraph of which sums up the Founding Fathers as saying that we must have a freedom of the press. I would like to commend you for your constant concern with civil liberties in this country; we all owe you a debt of gratitude for this service. Senator ERVIN. Thank you very much. Mr. REID. Mr. Chairman, as events in recent months have forcefully demonstrated, the press today is under the most serious attack upon it in our history. Aside from a great volume of rhetoric on the part of certain well-known government figures, the press has faced and is facing a number of specific legal actions in which its right to function without restriction is being challenged. These include the suit by the Government to enjoin the New York Times and the Washington Post from publishing the Pentagon Papers, the CBS subpena matter in the House of Representatives, the FCC notice to broadcasters last March warning against the indiscriminate airing of songs with drug-related lyrics, and several cases involving the subpenaing of news reporters' notes. |