Protecting Privilege

Protecting Privilege Journalists cheered when the Supreme Court ruled last June that the New York Times and others could not be restrained from publishing the Pentagon papers under the First Amendment's guarantee of press freedom. Since then the initial euphoria has faded. The Columbia Journalism Review rates the decision as a "severely qualified victory," and most editors agree. After all, three of the Justices thought prior restraint on publication was called for in that case, and individual opinions showed that a majority might favor its use in other circumstances. With the death of Justice Hugo Black, who felt the First Amendment gave the press blanket protection, future court votes might go even farther in the direction of restriction.

Bureaucratic Mercy. Editors are concerned at this possibility and so is the U.S. Senate's leading libertarian, Sam Ervin Jr. of North Carolina (TIME, March 8). A Southern conservative politically, Ervin has made a personal crusade of defending individual freedoms from Government encroachment. Last week, in the first of a series of Senate Judiciary Subcommittee hearings, Chairman Ervin and his colleagues heard the testimony of a parade of communications executives and experts.

New York Times Executive Vice President Harding Bancroft recalled that before the favorable Supreme Court decision on the Pentagon papers, the press was in fact restrained for 15 days until it was allowed to publish. Representative Ogden Reid, former publisher of the now-defunct New York Herald-Tribune, emphasized that "this is the first time . . . that prior restraint has been sought by the Federal Government." As for the broadcasting industry, Walter Cronkite of CBS charged that because it is beholden to the Government for its right to exist, "it is at the mercy of politicians and bureaucrats. Its freedom has been curtailed by fiat, by assumption and by intimidation and harassment." But perhaps the most eloquent plea for First Amendment freedoms came from Ervin himself.

Mortal Blow. Said he in an opening statement: "Some Government officials appear to believe that the purpose of the press is to present the Government's policies and programs to the public in the best possible light. They appear to have lost sight of the central purpose of a free press in a free society." Noting that "there are some Americans who apparently think they know what is good and what is bad for other Americans to hear on the radio and to see on television," Ervin charged that the "sweeping Government regulation of broadcasting implicit in this view foreshadows the end of a free broadcast media and with it a mortal blow to the First Amendment."

Ervin is also concerned about the increasing use of false press credentials by Government investigators and about the number of subpoenas on journalists by grand juries and congressional committees. He will watch closely how the Supreme Court rules on three pending subpoena cases in which the Justice Department is seeking to force reporters to reveal confidential sources for stories. Times Reporter Earl Caldwell and Newsman Paul Pappas of WTEV in New Bedford, Mass., refused to discuss Black Panther activities for grand juries, and Reporter Paul Branzburg of the Louisville Courier-Journal balked at identifying, for yet another grand jury, marijuana and hashish peddlers he had interviewed for a story on drugs.

Ervin's hearings are ostensibly to determine whether a Newsmen's Privilege Bill should be submitted to Congress. Its purpose would be to protect the reporter-informant confidential relationship. Ervin hopes its enactment will not be necessary and that the Supreme Court will provide a "ringing" reaffirmation of First Amendment protection that will serve the same purpose.

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