A Dry Spell of Doubt for Reporters

Gannett vs. DePasquale could be the biggest setback the press has yet suffered at the hands of the Burger Court but it is hardly the first. Other defeats:

Branzburg vs. Hayes (1972). A reporter has no right to withhold information about his sources from a grand jury in a criminal investigation. The court was unmoved by the contention that confidential sources will dry up if reporters can be compelled to reveal them.

Zurcher vs. Stanford Daily (1978). With a warrant, police can make a surprise raid on a newsroom to search for evidence of crime committed by others.

Houchins vs. KQED (1978), Pell vs. Procunier (1974) and Saxbe vs. Washington Post (1974). The press has no more right of access to public institutions than does the general public.

Herbert vs. Lando (1979). A libel plaintiff obliged to prove actual malice because he is a public figure has the right to inquire into a reporter's state of mind. Lando's CBS lawyers had argued that such questions could chill the free exchange of ideas in the newsroom.

Hutchinson vs. Proxmire and Wolston vs. Reader's Digest Association (1979), Time Inc. vs. Firestone (1976). A scientist whose publicly funded research had been ridiculed as wasteful by a U.S. Senator, a former Government translator who had been cited for contempt for refusing to testify before a grand jury investigating Soviet espionage, and a prominent Florida socialite embroiled in a highly publicized divorce were all held not to be "public figures" as libel plaintiffs. The court ruled that someone must "thrust" himself into a prominent public controversy in order to become a public figure. In effect, these decisions made it easier to sue for libel.

The court this term refused to hear the appeal of New York Times Reporter Myron Farber, who spent 40 days in jail for contempt for refusing to turn over to the defendant his notes at a murder trial. And it refused to review a U.S. Court of Appeals ruling that allowed Government investigators access to the telephone company's records of phone numbers called by journalists. Both cases, along with Branzburg, make it more difficult for reporters to preserve the confidentiality of sources.

The Burger Court's record is not entirely adverse to the press. The court has repeatedly ruled that the First Amendment protects the press from "prior restraint,"--that is, from laws or court rulings that prevent the press from publishing what it knows. Thus the court allowed the press to publish the Pentagon papers in 1971, despite claims by the Government of national security; unanimously (7-0) struck down a Virginia statute last year that penalized newspapers for revealing secret disciplinary proceedings against a judge; and forbade courts in 1976 to "gag" the press to keep it from printing information it had obtained at open pretrial hearings."

But the process of gathering news enjoys considerably less First Amendment protection from the Burger Court than does printing news once it is gathered. The court is highly protective of competing individual rights, such as a person's right to a fair trial or his right to protect his reputation and privacy.

Clearly, a majority of the justices on the Burger Court believe that the press has quite enough power without getting any more from the judiciary. "They view the press as potentially as dangerous to privacy as the Government," says Constitutional Expert A.E. Dick Howard of the University of Virginia Law School. One reason for this, Howard speculates, may be that the Justices themselves "are very private people" who are uncomfortable with publicity.

Defenders of the Burger Court argue that it is not cutting back on First Amendment rights, simply refusing to extend them. Inevitably, as the press grows more aggressive and probing, it steps on people's rights. These cases present the Burger Court with difficult choices that earlier Supreme Courts never had to face. Nonetheless, the Justices take a perhaps dangerously benign view of how lower courts and law enforcement officials operate in the real world. They may be underestimating the genuine risk that some of their decisions pose to the future of free speech.

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