Page Two
THE NEW BERN MIRROR, NEW BERN, N. C.
Friday, March 9, 1973
Thomas Jefferson wrote in
1787: "The basis of our
government being the opinion of
the peopie, the very first object
shouid be to keep that right; and
were it ieft to me to decide
whether we shouid have a
government without
newspapers, or newspapers
without a government, I should
not hesitate a moment to prefer
the latter.”
The Founding Fathers, of
course, decided that we should
have both government and
newspapers. Ever since then we
have time and again sought to
reconcile assert^ government
necessity—warrant^ or not—
to the demands of the First
Amendment. Now we again find
ourselves attempting to define
the relationship between these
two essential conipments of our
sctciety. Specifically, the issue
is whether government shoidd
be pennitt^ to compel the
press to reveal confidential
sources of information or the
content of unpublished in
formation. In recent days, this
has been the subject of hearings
before the Senate Sub
committee on Constitutional
Rights, of which I am Giair-
man. I have previously
discussed some of the points
involved in our deliberations,
and should like to pursue this
matter further by raising the
major views at stake.
First, should newsmen's
testimonial privilege be
qualified or absolute? Or,
shoidd it be absolute in some
forums and qualified in others?
The Subcommittee has before it
a number of bills and one joint
resolution which provide some
type of statutory protection for
newsmen. Those bills which
provide a qualified privilege
attempt to set standards which
must be met by the party
seeking the information before
the newsman is required to
divulge sources or confidential
information. While differing in
specific qualification, these
bills all attempt to reconcile the
interests in the administration
of justice with the free flow of
information. Those favoring an
absolute privilege argue that it
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is impossible to accommodate
the competing interest without
critically limiting the
newsmen’s protection.
The second question is
whether the privilege should
apply only to federal tribunals
or to the states as well. Most of
the cases involving
newsmen subpoenas have taken
place in state courts, but there
is reluctance on the part of
many to Federally establish
such a privilege for the states.
A third question arises as to
who is a newsman. Who should
be entitled to claim the
privilege? The First Amend
ment applies to all citizens, and
protects their right to publish
information for the public. But
the testimonial privilege can, of
course, not be available for all.
Thus, a serious problem of
definition is posed. It must be
broad enough to offer protection
to those responsible for news
reporting, and yet npt so broad
to shield the occasional writer
from his responsibility as a
citizen.
A fourth question develops
over whether the protection
should extend only to the
identity of confidential sources,
or should it include unpublished
confidentiai information. With
the protection of confidential
sources, we are concerned with
the identity of informants. As to
unpublish^ information, it is
the integrity of'the newsman
that is at stake. Separate policy
considerations underlie these
cat^ories.
A fifth question concerns the
procedural mechanism for
asserting or divesting the
privilege. As is often the case,
the effectiveness of the sub
stantive provisions may well
depend on the method by which
they are employed. For
example, if a newsman is issued
a sub^na he has the choice of
either moving to quash the
subpoena or appearing at the
proceeding. If he appears at the
proceeding and is asked a
question relating to confidential
material, he may object. A
better solution from the point of
view of the newsman would be
to have the burden of showing
that he is not entitled to the
protection of the statutory
privilege rest with the party
seeking the information. The
proposed bills differ on the
procedural mechanism which
decides how the newsman is
entitled to assert his protection.
Finally, there is the issue of
the applicability of the privilege
to libel and other civil suits.
Critics urge that in a libel suit in
which a newsman is a defendant
and where the defense is bas^
on the truth of what he has
written that a newsman should
not be allowed to hide tehind
the privilege and refuse to
identify the source or in
formation upon which he was
relying.
These are some of the com
plexities of drafting legislation
applicable to the newsmen's
privilege.
Each person is horn to one
possession which outvalues all
the. others, his last breath.—
Mark Twain.
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