Subpoenas (Contd.)

Will there be a federal "shield" statute to protect the confidentiality of newsmen's sources? If so, how strong a measure will be enacted? There was still no firm consensus in Congress last week despite the protracted debate. However, Representative Robert Kastenmeier, chairman of a House Judiciary Sub committee holding hearings on the dispute, made a cautious prediction: "The odds favorour coming out with some kind of recommended legislation." In the House generally, he said, "proshield forces are definitely stronger than anti-shield forces at this time."

Kastenmeier meanwhile was getting varied opinions from journalists. Investigative reporters would be the prime beneficiaries of a shield law, but Clark Mollenhoff of the Des Moines Register, who has won a Pulitzer Prize for his investigative work, testified that journalists should fight subpoenas on an individual basis, relying on the Constitution for their defense. A law giving absolute protection, he said, could impede law-enforcement agencies and would give newsmen privileges "beyond anything enjoyed today by anyone except absolute monarchs." Anyone could get protection, Mollenhoff added, by claiming to be gathering information for a publication. (Actually, many of the bills that have been introduced at tempt to clarify this question by limiting privilege to those "regularly employed" in newsgathering.)

Mollenhoff is in a tiny minority within the trade. Stanford Smith, president of the American Newspaper Publishers Association, and A.M. Rosenthai, managing editor of the New York Times, were among those arguing for absolute protection of confidential sources and unpublished material. "I say flatly," Rosenthal contended, "that without the guarantee of confidentiality, investigative reporting will disappear. The erosion of confidentiality will mean the end of the exposure of corruption as far as the press is concerned."

Last week Time Inc. proposed a strong federal statute that would apply to state cases as well. However, the company did not urge absolute immunity in all circumstances.

The statement, issued by Editorial Director Ralph Graves, pointed out that Time Inc. would prefer to rely on constitutional defenses of newsmen's privilege. But the refusal of the Supreme Court last June to protect newsmen and the frequent issuance of subpoenas has made the company conclude "reluctantly" that "the First Amendment now needs legislative support."

Specifically, Time Inc. proposed that the law cover both the issuance of subpoenas and conditions under which confidential information would be disclosed: "A subpoena for a reporter's testimony and material should not be issued unless it is established at a prior court hearing that the reporter has relevant information that cannot be obtained from any other source, and that the information is so important that lack of it might result in a miscarriage of justice."

Even if a subpoena is then approved, "a reporter should not be compelled to disclose confidential sources unless it can be demonstrated that there is imminent danger of loss of life if he does not disclose such information, or that he has essential information on a violent crime such as murder, kidnaping or skyjacking. Another criterion, which the Congress will no doubt consider, is overriding danger to the national security, though this concept is easily abused and extremely difficult to define."

Essential as legislative protection has become to assure unfettered newsgathering, it is crucial that the law be clear and comprehensive. Said Time Inc.: "A complex, heavily circumscribed shield law, leaving the question of privilege open to a wide variety of judicial interpretations, would be worse than nothing and might well invite a new wave of exploratory subpoenas."

The statement also stressed the broad issue in the current debate: "The freedom of the press guaranteed by the U.S.

Constitution does not belong to journalists; it belongs to the public. It exists only so the public can have the opportunity report." to know what the press is able to

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