S. 1311-FREEDOM OF THE PRESS

TUESDAY, FEBRUARY 1, 1972

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10:45 a.m., in room 1202, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding.

Present: Senators Ervin (presiding), and Kennedy.

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

Senator ERVIN. The subcommittee will come to order.

I want to apologize to everybody concerned for the delay. I attended a prayer breakfast at the White House and there was such a traffic jam up there, I had trouble getting away. Then I had to go and testify before another congressional committee.

I have an opening statement which I will not read. I will have it inserted in the record at this point.

(The statement referred to follows:)

Today the Senate Subcommittee on Constitutional Rights resumes its hearings on the state of freedom of the press. This series of hearings, to continue on February 2, 8, and 17, follows eight days of Subcommittee hearings in September and October of 1971 on the same subject.

In the course of our previous hearings we have examined a number of current problems associated with the First Amendment's guarantee of freedom of the press. Among other matters, we have considered the increased government subpoenaing of newsmen, the government's attempt to enjoin several newspapers from publication of the so-called "Pentagon Papers," the controversy surrounding the CBS program "Selling of the Pentagon,” alleged harassment by government of the "underground press," and the expanding scope of government regulation and control of the broadcast media. During this second series of hearings we will continue to focus on these subjects.

In addition, the Subcommittee for the first time will examine developments in "cable television" and public broadcasting with a view toward understanding their impact on First Amendment principles and government communications policy. These are important developments which will receive increasing attention in our country. Indeed, a special commission studying the future of cable television has said:

"Cable technology, in combination with other allied technologies, seems to promise a communications revolution. There have been such revolutions before. Some 500 years ago the hand-written manuscript gave way to the printed book, and where earlier the store of man's knowledge and judg ment and imagination had been available only to a few thousand of the wealthy or the learned it abruptly was laid bare to all who wished access to it. Some hundred years ago the first telephone wires were strung, and where earlier a man could readily make immediate contact with no more than those persons he chanced to find in his own neighborhood, quickly he

began to find the whole city, the whole nation and ultimately the whole world within the sound of this voice. The revolution now in sight may be nothing less than either of those. It may conceivably be even more." (Sloan Commission, p. 2)

Developments in technology, new concepts in the communication of ideas, and proposals for new government communication policies will be presented to the Subcommittee. By considering these matters in the context of First Amendment principles, I believe we can help assure that the purposes of the First Amendment-to secure the political, intellectual, and spiritual freedom of all Americans-will be better served.

Last fall the subcommittee heard a number of distinguished Americans express their doubts as to whether government any longer shares the faith of our Founding Fathers in the value of an unbridled, robust press free from government control and intimidation. They brought to our attention far too many instances in which government has appeared anxious to silence its critics by official sacntion or the threat of official sanction.

Of course there has always been a state of tension between government and the press. This is as it should be. This is what our Founding Fathers contemplated when they wrote the First Amendment. Government officials have every constitutional right to express criticism of newspaper stories and television reports which they believe to misrepresent the government's policies and intentions. Indeed, recent experience demonstrates that the freedoms protected by the First Amendment are fully appreciated and frequently availed of by this Administration's spokesmen. Our concern is not, nor should it be, with the exercise by government officials of their own First Amendment rights. Rather, our concern is directed to evidence that the government is not respectiful of the First Amendment rights of its critics. The press cannot perform its function as a watchdog for the public if government views it as an enemy of the public and acts accordingly.

Among other distinguished witnesses scheduled to testify during four days of hearings, we will hear from Mr. Andrew Heiskell, Chairman of the Board of Time-Life; Mr. Elie Abel, Dean of the Columbia University Graduate School of Journalism; Professor James Q. Wilson, Harvard University Political Science Professor and member of the Sloan Commission on Cable-TV; Mr. Clay Whitehead, Director of the Office of Telecommunications Policy; Miss Edith Efron, author of the vook The News Twisters; Mr. Bill Monroe of NBC News; and Mr. Norman Lear, writer for the popular television program, “All in the Family."

Our first witness today is Mr. Daniel Schorr, a news correspondent with the Columbia Broadcasting System. The Subcommittee invited Mr. Schorr to discuss reports of an FBI investigation of him conducted last year. Following press reports of this investigation, many Americans expressed their concern over the impact of this incident on freedom of the press. The Subcommittee itself has received a large number of inquiries and comments, about this matter, Consequently, I extended an invitation to Mr. Schorr and to two White House officials, Mr. Charles Colson and Mr. Frederic Malek-who reportedly authorized the investigation-to use these Subcommittee hearings as a forum for setting the record straight. Unfortunately, neither Mr. Colson nor Mr. Malek have agreed to testify. The only official Administration response to our Subcommittee inquiry of this matter, made by letter, has come from Mr. John W. Dean, III, Counsel to the President. By-passing a number of specific questions which I posed in my letter of inquiry of November 12, 1971, to the President, Mr. Dean wrote on behalf of the President:

"This matter has been fully and carefully reviewed. There are no indications of any intent on the part of anyone on the White House staff to harass or intimidate Mr. Schorr by initiating an investigation into his background."

I have written letters of inquiry to Mr. J. Edgar Hoover, Director of the Federal Bureau of Investigation; Mr. Robert Hampton, Chairman of the Civil Service Commission; and Mr. William Ruckelshaus, Administrator of the Environmental Protection Agency. From them I hope to learn what government positions were open at the time of the Schorr investigation, who ordered the investigation and when, what information the FBI was asked to obtain, to whom they were to report, and what has happened to information collected about Mr. Schorr. Mr. J. Edgar Hoover has written an immediate and most

helpful response to my letter. I would like to insert Mr. Hoover's letter in the hearing record immediately following my statement.

I want to have faith that the Executive Branch is fully responsive to the Congress and the American people and that it is willing to tell the Congress and the people what they have a right to know about its actions and policies. But the White House's refusal to make available to this Subcommittee a single spokesman in the course of these hearings has caused me to question my own faith. Not only has the Subcommittee been unable to obtain testimony from a White House spokesman concerning the FBI investigation of Mr. Schorr, but it has been unable to obtain any other White House official to discuss generally the problems between the White House and the press. We invited Mr. Herb Klein, the President's Director of Communications, to testify in the first series of hearings. In turning down our invitation, Mr. Klein wrote, "I wish to advise you that, as a member of the immediate staff of the President, I must respectfully decline the invitation to testify."

This use of "executive privilege" is a great mystery to me. The Administration seems to be granting to itself an unprecedented privilege from setting forth for the public its policies and attitudes toward the First Amendment, the keystone of our freedom and our democracy. How can a government be responsive to the people if it will not answer the people's questions, explain its actions, and describe its policies to the only national body directly responsible to the people?

Despite the fact that we have been unable to explore fully the problems between the Administration and the press, I am confident that this second series of hearings, like the first, will result in a greater understanding of and appreciation for the freedoms protected by the First Amendment. I want to express my appreciation to the individuals and groups that have contributed greatly to the development of these hearings.

Senator ERVIN. Do you have a statement, Senator?

- Senator KENNEDY. I want at the start of these hearings to recognize the very significant contribution that you have made and this subcommittee has made to the protection of the free speech and free press rights in this country. I think the work that was done by this subcommittee, and you in particular, in the area of military surveillance will be recorded as some of the most effective work done by any congressional committee to protect the civil liberties of American citizens. I think it is entirely appropriate that these hearings be held at a time when, over the period of the last 3 years, we have seen the heavy hand of Government and its use against the press of this Nation and the television networks; the attacks that have been made by the Vice President against the networks and many of the major newspapers, the efforts which have been made to make newsmen involuntary agents by subpenaing them and subpenaing their notebooks, the efforts that were made to keep silent the pentagon papers, and now the very mysterious set of circumstances that have been raised surrounding Mr. Daniel Schorr and the activities of the FBI in investigating him.

I personally feel that the press and speech in this country are as threatened as at any time in the history of our Nation since the passage of the Alien and Sedition Laws. I feel that the work you have done in this area and the work of the subcommittee, is some of the most important work done by any congressional committee in the last few years. I just want to express great satisfaction that these hearings are being held and say thank you for the initiative you provide in this area.

Senator ERVIN. I want to thank you for your statement and say, on my own behalf, that whatever good the subcommittee has done in

this field has been due in large measure to the fact that you have strongly supported this activity.

Will counsel call the first witness?

Mr. BASKIR. Mr. Chairman, our first witness this morning is Mr. Daniel Schorr, news correspondent for CBS television.

Senator ERVIN. I want to thank you for your acceptance of the invitation extended to you by the subcommittee. I think your appearance here will either help clarify the state of confusion that exists, or make the state of confusion-in light of the newspaper article or evidence supplied by the White House-more dense, I do not know which.

STATEMENT OF DANIEL SCHORR, NEWS CORRESPONDENT, CBS

Mr. SCHORR. Mr. Chairman, thank you. I doubt that what I say will totally clarify events, many of which still remain a mystery to me. But whatever help I can be, I am delighted, because I share your concern and the concern of this subcommittee about relations between the Government and the press and people of the press in this country.

I am Daniel Schorr, resident of Washington, D.C., a correspondent of CBS News for the past 19 years, for many of those years a foreign correspondent in the Soviet Union, Poland, Germany, and elsewhere; for the past 6 years in Washington, where I also had previous assignments.

Mr. Chairman, you have invited me to testify concerning the FBI investigation of me and related matters. I am happy to respond, sharing your concern for the state of freedom in the press and the relationship between the Government and the press. I have not until today given any public recital of this singular episode because of a conviction that a reporter of events should try to avoid, if he can, becoming part of the events. But, in the interests of this subcommittee's inquiry. I shall be as helpful as I can. In a sense, it is somewhat embarrassing for me to be making my debut as a witness, because in some part, I feel we should be on the other side of those lights and not have to stand in front, but I think the episode has made it necessary. I would not myself have reported it on the radio or on television, but since it has become a subject of inquiry, I am glad to be here.

CBS has not been consulted about my testimony, and I speak entirely for myself. The facts are as I experienced them. The administration has at no time, until today, undertaken to give me any official explanation of its investigation.

On Friday, August 20, 1971, at about 10 a.m., an agent of the FBI appeared, without prior appointment, at the Washington office of CBS News, saying that he wished to interview me and my bureau chief, William Small, and to consult personnel files on me as part of an investigation undertaken, he said, because I was being considered for a high Government position.

Mr. Small declined to cooperate unless advised of the nature of the position, which the agent said he did not know. Interviewed separately, I replied to initial questions, but then declined further

answers pending some indication of the position for which I was being investigated. The agent asked if I had any objection to pursuance of the investigation elsewhere, or of the FBI's pursuing the investigation elsewhere. I said, yes, I did object, because such an investigation could be a source of embarrassment and, at the very least, create the impression that I was considering a change of employment. The agent promised to report my observations to his superiors.

In fact, embarrassment for me had already begun. Early that morning the FBI Bureau in New York had telephoned the home of Richard N. Salant, president of CBS News, apologizing for the early call by speaking of a crash investigation that had to be completed by the following Monday. Other CBS executives were contacted during that day. I had some difficulty in allaying their concern that I was planning to leave CBS. They found it incredible-as did I that a full field investigation should be in progress, connected with a possible appointment of which I had no inkling. My relations with CBS News are, happily, on the whole, rather stable. Otherwise, they could easily have been placed under a great strain.

From information volunteered to me by others who had been approached by the FBI, it appeared that agents interviewed or telephoned previous employers, various colleagues, including an NBC correspondent who served with me in Moscow; residential neighbors, one of whom reported what appeared to be surveillance of my home; and neighbors of my brother, Prof. Alvin L. Schorr, dean of the School of Social Work at New York University.

There was naturally intense speculation among all of us within CBS about the purpose of the investigation. Perhaps more trusting than most, I inclined to the belief that there is more bungling than conspiracy in Government, and that the investigation had perhaps preceded a job offer, which would eventually emerge. Others in CBS leaned more to a harassment theory because of the general climate of pressure on the broadcasting industry, the history of my relations with the administration, which I shall go into in a moment, and especially because of the timing of my investigation.

The administration and its supporters had, on several occasions, expressed displeasure over my reporting. Senator Dole had inserted a statement in the Congressional Record criticizing my reporting on nutrition matters. President Nixon had accused me, in speaking to a group of newspaper women, of "telling a little lie" because of a report indicating that the President had privately, at one point, expressed misgivings about the Safeguard ABM system. White House Press Secretary Ronald Ziegler had criticized me at briefings in printable language, and other White House officials had expressed themselves privately in less printable language. And on August 19, the day before the start of the FBI investigation, I was invited by the White House to a meeting with officials to hear objections to my report on the CBS Evening News the previous day raising doubts about the concrete effects of President Nixon's promise to assist the Catholic parochial schools in their financial plight.