The Right to Silence

The First Amendment guarantee of a free press has never been interpreted by the Supreme Court the way some journalists would like to have it--a blanket protection against any judicial inquiry into a newsman's activity, sources and unpublished materials. The Ninth Circuit Court of Appeals ruled last November that New York Times Reporter Earl Caldwell was right in refusing to testify before a grand jury investigating the Black Panthers because the jury was on a "fishing expedition"; for Caldwell to talk, the court held, would have turned him into an investigative agent for the Government. Though an important precedent, the ruling has no binding force in other circuits. At least three new confrontations, two of them raising novel legal and editorial questions, have developed:

> The court that convicted Lieut. William Galley last week also made an unprecedented demand for some 60 hours of taped conversation between Galley and Writer John Sack, whose as-told-to stories are appearing in Esquire under the title "The Confessions of Lieutenant Galley." It was the first time a military tribunal had asserted the authority claimed by civilian courts, and in doing so Trial Judge Colonel Reid Kennedy said he did not consider Sack's stories the work of a journalist but a ghostwriter. "We're not talking about news but about a confession. As far as I'm concerned, Mr. Sack is not a news gatherer," Kennedy said. Sack's position: "I know I gathered something, and if it isn't news, why are the newspapers printing it?" He added: "What do I do on the next story? Tell the guy I'll get you on the cover of Esquire --and hanged?" Although the Galley trial was concluded without the tapes, the case against Sack is still pending in the U.S. District Court in Columbus, Ga. Sack promises to fight as long as the Government persists.

> TV News-Cameraman Paul Pappas got a rare invitation for a white newsman last July. The Black Panthers said he could talk to them at their headquarters in New Bedford, Mass., as long as he did not report anything that happened that night--unless he was present during a raid on the headquarters. Pappas agreed spent four hours with the Panthers and left. Five hours later, the police raided. A grand jury investigating race riots in New Bedford later subpoenaed Pappas and asked him several questions--including the identity of the Panthers he had interviewed--that he felt he could not answer without violating his agreement. He refused and appealed to the Massachusetts Supreme Court, citing the First Amendment. The court rejected his argument. With the legal and financial backing of his station, WETV, he is now appealing to the U.S. Supreme Court.

> Underground Editor Mark Knops, 28, proclaims himself an active radical. After the University of Wisconsin's mathematics center was bombed last August and a staff researcher killed, Knops' Madison Kaleidoscope printed a letter from the New Year's Gang claiming responsibility for the crime. Knops has indicated that he is a friend of the gang's members and they have his "open and enthusiastic endorsement of sabotage" like the bombing. A grand jury, insisting it did not want Knops' sources, summoned him to testify in its investigation. He refused, citing the Fifth, First and 14th amendments. The Wisconsin courts accepted none of them, and Knops served four months of a six-month jail sentence before he was freed last December for an appeal. With the support of the American Civil Liberties Union, he has now gone before the U.S. District Court in Milwaukee with the claim that he has a journalist's privilege to silence. But his affinity for radicals and their cause, and his personal involvement in it, clearly raises another question: When does a journalist stop being a journalist?

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