Fallout from the Farber Case

A blizzard of subpoenas has reporters chilled

Not many of the journalists, civil libertarians and other citizens who have rallied to the cause of jailed New York Times Reporter Myron Farber have ever heard of Joe Pennington. But Pennington is facing a 60-day jail term for refusing to reveal his source in a murder case he covered last year for Wichita, Kans.' KAKE-TV--the same principled stand that put Farber behind bars.-

Pennington is one of dozens of unsung Farbers around the country whose notes have been subpoenaed by prosecutors or defense attorneys in the wake of the Times incident. No one can say how many of the subpoenas were directly inspired by that widely publicized case, but the number appears to have risen dramatically. The Washington-based Reporters Committee for Freedom of the Press, which is looking into at least 29 cases involving journalists who have been subpoenaed in the past 18 months, notes that new cases are coming in at the rate of 100 to 125 a year. In many instances, the subpoenas are being issued despite state "shield" laws that are supposed to protect reporters from such depredations. "There are so many confidentiality cases pending now that we just can't keep track of them all," says Jack Landau, the committee's director. Adds Don H. Pace, an Ohio lawyer with a number of newspaper clients: "It's as if somebody suggested this approach at a meeting of prosecutors. There's been a flood."

The flood did not actually begin with Farber, but with the Supreme Court's 1972 ruling in Branzburg vs. Hayes that reporters could be compelled to testify before grand juries. Many journalists argue that Branzburg and a few later decisions are proof of a growing judicial--and perhaps public--hostility toward the press, and fear that prosecutors and defense attorneys are exploiting that mood.

Yet there is evidence on the other side as well. One of the year's most widely denounced Supreme Court rulings--Zurcher vs. Stanford Daily--which authorized some police searches of newsrooms, has apparently not touched off the feared wave of such raids. In addition, a Gallup poll this month indicates that Americans support a reporter's right to protect confidential sources by a margin of 3 to 1, more than in similar surveys in 1972 and 1973. Still, more and more lawyers are using subpoenas of reporters as gambits in criminal trials. "They may even think they have to," says Floyd Abrams, the Times attorney representing Farber.

Some reporters have agreed to turn over their notes after subpoenas were redrawn to demand only pertinent information or to ensure that sources remained confidential. Reporter Robert Andrews of the Syracuse Post-Standard at first refused a judge's request to disclose his sources for an inquiry into local corruption, but agreed to testify when the judge said he did not have to divulge the name of his only confidential source.

But many journalists say they would rather go to jail than hand over their notes. Former Sacramento Union Reporter John Hammarley was cited for contempt last July after refusing to surrender tapes and notes of conversations he had with a witness in a Sacramento murder trial. Hammarley, who now works for the Los Angeles Herald-Examiner, says he is prepared to go to prison if he loses on appeal. So is Wichita's Joe Pennington, who now works for KPIX-TV in San Francisco and is appealing his contempt citation to the Supreme Court.

Some publishers lack the funds to fight a subpoena to the last appeal; others find that to be pointless. After Palm Beach Post Photographer John Lopinot's never-published pictures of an open-heart operation were subpoenaed in connection with a malpractice suit, the paper eventually agreed to hand them over. "I preferred to fight it," laments Lopinot. "They felt they couldn't win the case."

Sometimes there is a very good reason for turning over notes or photographs: a defendant's freedom or very life may hang in the balance. "The press does not have a paramount privilege that transcends all other rights," asserts James Thomson, curator of the Neiman Foundation. Argues New York Times Columnist Anthony Lewis: "The press tends to forget that defendants have rights too."

Even journalists who agree with that view are concerned that the recent blizzard of subpoenas will have a chilling effect on confidential sources. "They'll dry up," predicts Traverse City, Mich., Record-Eagle Managing Editor John Kinney, whose appeal of an order to produce notes of an interview with a murder suspect was rejected last week by a state court. Indeed, Boston Globe Executive Editor Robert Healy tells of a confidential source who had promised to help a Globe reporter with a story on questionable fund-raising activities; the source backed out for fear that the reporter's notes would later be seized.

Will sources really dry up? Michigan Law Professor Vincent Blasi surveyed 975 journalists in 1971 and found they believed that tipsters with an ax to grind would come forward even if they could not be promised anonymity. But Blasi also found that the reporters thought secondary sources useful for verifying a tipster's allegations might be intimidated.

Even if sources are not frightened by the threat of subpoenas--or of news room searches--some journalists are. The St. Petersburg Times routinely destroys all its staff photographers' negatives except those of published photos. Palm Beach Post Reporter John Purnell says he may start shredding his notes to keep them out of the hands of prying prosecutors and defense attorneys. He advises colleagues: "Get yourself a safe-deposit box and put it in your mother's name." -

*Farber is serving an indefinite jail sentence for refusing to surrender his files on a New Jersey murder case. His Times lawyers have asked the Supreme Court for a hearing on the subpoena's merits, which the lower courts have never considered.

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