document resume title institution reporters ...document resume cs 201 814 press censorship...
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ABSTRACTA compendium of legal actions affecting the First
Amendment and freedom of information interests of all the media onthe federal, state, and local leve'c, this newsletter contains 316indexed summaries of "Media Law Rep4Jrts.01 The abstracts are arrangedin 10 categories: prior restraints on publication and distribution,freedom of information, confidentiality of news sources, fairtrial-free press/access to the courts, privacy and libel, right ofreply/access to the media, the broadcast media, labor, high schooland college press, and miscellaneous dtvelopments. (TO)
DOCUMENT RESUME
CS 201 814
Press Censorship Newsletter No. VI.Reporters Committee for Freedom of the Press,Washington, D.C. Legal Defense and Research Fund.Jan 7581.The
pPress Censorship Newsletter, Reporters Committee
for Freedom of the Press, Legal Defense & ResearchFund, Room 1310, 1.970 Pennsylvania Ave. N.W.,Washington, D.C. 20036 (Single copies free)
MF-$0.76 HC-$4.43 PLUS POSTAGEBroadcast Industry; *Censorship; Civil Liberties;Confidentiality; *Court Litigation; *Freedom ofSpeech; Information Sources; Journalism; *LegalProblems; *Mass Media; Newspapers; StudentPublications
U I OVPARYFAIN Or HEAT, H110%110010N 4 %IVAN rMAYIONAL INITITUVI OF
1101,CAYIONtws DOCUMENT HAS SEEN fit Pk)OUCFD OKACT1,r AS Ft ECC,.10 $40.e!tie PERSON OR OROAHItAT,oti ` N
A N4 IT POINTS OF L MOO riR,TArED DO NOT NECESSARL Y fit Pitt,E r OcaoCIAL NATIONAL ,NS' '1D ':AYION POSITION OR POL ',*
r.1,7313,
up COPY. AVAILABLE
CEMBER JANUARY.
I I SS
rr\ or, FREEDOM OF INFO ACT PASSED: ANPA BACKED FORD SUBSTITUTE (p. 15)
CD
C ) CONGRESS MOVES TO SEAL INFO ON GOVT CONTRACTS & GRANTS (p,SU
Is. INDIANAPOLIS STAR REPORTERS INDICTED AFTER POLICE PROBE (p.28)
CONGRESS MAY SEAL PUBLIC RECORD. CRIMINAL JUSTICE INFO (p.52)
1110, CALIFORNIA MEDIA HIT BY FOUR NO NOTICE POLICE SEARCHES (p.30)
ST. LOUIS JUDGES FOREVER BAN POST -TRIAL JUROR INTERVIEWS(p.47)
Its VIRGINIA BARS ALL MEDIA INTERVIEWS WITH ATTORNEYS(p3o)
TEXAS COURT SAYS POLICE, MAY SEAL ALL ARREST WARRANTS (p,54)
MASSACHUSETTS LAW SEALS ARREST & INDICTMENT RECORDS (p.52)
MISSISSIPPI FEDERAL COURT HOLDS SECRET WRY SESSION (p.45)
IDAHO COURT BARS-PUBLICATION OF SWORN DEPOSITIONS (P=S)
KENTUCKY REPORTERS JAILED FOR POLICE SESSION COVERAGE (p.27)
100 ATLANTA POLICE DENY PRESS PASS TO BLACK NEWSPAPER (p.28)
OHIO REPORTER IN CONTEMPT FOR PUBLIC TRIAL REPORTING (p.6)
LOS ANGELES REPORTER JAILED & DENIED Eiga4 IN BOMB PROBE (p.38)
NEW YORK COURT SEALS CITY FALSE ARREST unman (p.46)
WHITESBIJ1IG (KY) EAGLE BURNED OUT: POLICEMAN ARRA TED (p.28)
JUSTICE DEPARTMENT VIOLATES OWN SUBPOENA GUIDELINES (p.34)
STOCKTON, CAL. COURT HEARS SECRET WITNESSES (p.6)
INDEX ON PAGE
SLETTER No. VI
77 pages: 316 indexed summaries ofMeat Lew Reports
Compiled and distributed as a public service by
111E REPORTERS COUMITTER FOR FREE M OF THE PRLEGAL DEFENSE AND RESEARCH FUND
WASHINGTON, DX,
BEST COPY AVAILABLE
,THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESSLEGAL DEFENSE AND RESEARCH FUND
Room 1310 *1750 Pennsylvania Avenue, N,W.Washington, 0,C, 20006 *Tel: 202.298.7460
Steering CommitteeWASHINGTONElsie Carper
*Washington PostLyle Denniston
*Washington Star-NewsFred*. litaham
*CBS NewsJack C. Lan*
*Newhouse NewspapersRobert C. Maynard
*Washington PostJack Nelson
*Los Angeles TimesEileen Shanahan
*New York TimesHoward K. Smith
*ABC News
NEW YORKKenneth Auehine loss
*NewsWeek
Walter Croat&*CBS News
Nat Henson'*Freelance
Anthony Lukas*Freelance
Lemuel Tucker*ABC News
BOSTONJohn Kibler
New York TimesJohn Wood
*Boston Globe
CHICAGOJoel Weisman
*Chien° SunTimesDENVEliGrace L. Muslin
*College Press Service
MIAMIGene Miller
*Miami Herald
NEW ORLEANSWilson F. Minor
*Times.Picayune(Jackson Bureau)
*Identificationpurposes only
THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, IS
The only legal research and defense fund organization in the nation exclusively devottd toprotecting the First Amendment and freedom of information interests of the working re$$ Ofall media.
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The organizational premise of the Committee is that the Constitutional interests, of wonews reporters, news editors and photographers may be different from the legal intoother institutional organizations involved in freedom of speech and press probleMs
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Steering Committee members perform on a volunteer Oasis. Generally, legal regtetperformed on aprobono public° basis bylaw firms. The Committee provides .advice, representation, and research services on both litigative long.terinshort.term bases to individual reporters and to the working press as a class. No tasked from individual reporters who benefit specifically from the Committee aCommittee is mainly funded by grants from major media organizations.
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The Committee welcomes complaints about serious infringements on the legal tights ofworking press, and welcomes inquiries about its activities: Write a/o Root 1$Pennsylvania Avenue, N.W., Washington, D.C., 20006: Telephone hulk Landau202/298.7460.
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NOTE; The Reporters Committee has Available court opinions, brief, and ease citationpending bills, legislative analyses, clips or other background information for most itemreported in this Newsletter.
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This Newsletter is published as a public service and any or all contents may be republishedwithout permission. Single copies will be supplied free upn request. Multiple copies will besupplied at cost. Write to; The Press Censorship Newsletter,Editors: Ruth MacNaughton, John Fox, Fielding McGehee, Ronald Schechter.
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a
FYI----MEDIA ALERT
Enclosed please find the December January edition of the Press Censorship Newsletter,a compendium of legal actions affecting, the First A mendment and freedom of informationinterests of all the media on the federal, state and local level.
We particularly call to your attention the following developments and trends:
.The provisions of the amendments to the Freedom of Information Act which should discour»age:the delay and redtape encountered by the media in using the Act as passed in 1966. (p. IS)
*The Omnibus PrivacySecrecy Bills now pending in both the House and the Senate wtlIchwould seal all "personal" records of persons who have government contracts or who are otherwise-grantees of government funds. (p.51)
The increasing momentum under the guise of privacy to seal public record arrest and coneviction files on the federal, state and local levels. (p. 52)
*The evidence alleging that the Department of Justice is not following its own guidelines inissuing subpoenas to news reporters seeking confidential information. (p.39)
The use by California police four times this year of nonotice search warrants to searchmedia offices, rifle files and remove news information as a method to avoid the California shieldlaws which prohibits forced disclosure of confidential news sources. (f. 30)
*The continued use of broadgag orders by courts barring news media access to public courtrecords and proceedings and even barttng editorial comment on cases, with two gag order testcases now pending at the Supreme Court. (p.
The continuing effort to impose both criminal penalties and prior restraint publication ordersagainst any media organization which obtains any "national security" information without thegovernment having to show that the information would pose a danger to the nation's security4.17)
*Two pending Supreme Court cases on the question of whether private individuals involved in"public events" can sue the media for alleged invasions of their privacy. (pp. 5140
The use of state criminal Justice system employees to attempt to intimidate the media forcritical investigative reporting (i.e. the indictment of two Indiana reporters, the arrest of aKentucky policemen charged with burning down the Whitesburg, Ky. Mountain Eagle news.paper. the arrest of two Louisville, Ky. reporters, and the denial of police passes to establishedblack and underground newspapers). (pp. 27.28)
*The new federal rules of evidence which, if the Senate version is accepted, would bar themedia from pleading state shield laws before federal grand juries and before libel case juriesseeking confidential information. (p. 35)
4
INDEX December/January
I PRIOR RESTRAINTS ON PUBLICATION& DISTRIBUTION
Judicial1. Philadelphia Inquirer: Media gag order appeal2. Times-Picayune: 34 day gag appeal3. Idaho Statesman: Libel gag order4. Wash. Ct. House Record: gag-contempt5. Stockton Record etc. witness gag order6. Va. Weekly: Abortion ad conviction7. N.Y. Times: Africa ad injunction8. WSB-TV Atlanta: Crime victim gag9. CIA book: 6 month injunction
10. ABC News: 29! day injunction11. Army Tinges: Libel injunction12. Denver Advertising Board injunction
13. Wash. Post crime victim name ban14. SEC regulates financial reporting: Note15. Western Financial Journal: gag imposed16. Value Line writer indicted
FREEDOM OF INFORMATION cont.'d4. Congressional action (S 4016)S. Reporters Committee v. Sampson complaint
Pp. 5.9 6. U.S. dist. court restraining order7, Ford & the Press-An overview8. Prus secretary terHorst resigns9. Ford asks TV coverage of Kansas speech
10. Ford denied election TV interview
Federal/Legislative11. Congress amends 1966 FOI Act (11R 12471)12. House-Senate conference report13. Ford veto14. Ford substitute bill15. Veto overriden
National Security16, FOI national security bill (HR 12004)17. Official secrets Act (S 1)18. CIA prior restraint proposal19. National security leaks bill (HR 15845)
pp. 15-17
pp. 17.18
Distribution17. Long Beach nude newsrack. ban18. Swarthmore. Pa. newsreel( ban19. Vermont state prison: Inmate newspaper20, Enemy Trading Act bars foreign papers
Search Warrants Seizures of News21. Station KPFKFM: Los Angeles22. The L.A. Star: Los Angeles23. Station KPOO-FM: San Francisco24. Berkeley. Calif. Barb: Berkeley25. Sooner State Newv Agency: Oklahoma
Legislative
26. Fed. law bans lottery news
Senate bill exempts lottery news (51186)House bill permits lottery news (HR6668)Senate bill exempts lottery news (51186)Sup. Ct. hears FCC lottery banHouse bill permits lottery news (HR6668)
27. Fed. Defense Act censorship bill28. National Security censorship bill (HR 18545)29 Official Secrets Act IS 1)30. CIA press injunction proposal31. Delaware signed editorial bill32. Nevada campaign spending restraint33. Oklahoma dead vet news ban34. Political advertising certification repealed
II FREEDOM OF INFORMATIONFederal/The Presidency .
1. Ford-Nixon documents agreement test case-Who owns Presidential documents?
2. NixonSampson contract terms: Saxbe memo3. Watergate special prosecutor objections
pp. 9.10
p. 10
pp. 10-12
pp. 13 -IS
20. Congressman faces censure for media leaks21. Congress opens meeting bill (HR 1000 /S 260)22. Media access to foreign bases (S 3394)
privacy- Secrecy p.1823. Congress favoring omnibus privacy-secrecy24. Senate omnibus bill (S 3418)25. House omnibus bill (HR 16373)26. Senate criminal justice privacy (S 2963-64)27. Juvenile privacy law (5 821)
Televising Congress p. 1828. TV in Congress: Joint committee report29. 20thVetitury fund30. American Bar Association31. New York Bar Association
Federal/Executive pp. 19.2432. Senate studies federal agencies POI (SR 253)33. FTC interim votes to be public34. FTC may open consumer sessions35. FTC limits press briefings36. Note: Most favored media access37. PEA opens meetings38. HEW streamlines F01 requests39. TVA sets high FOI charges: Mountain Eagle40. Commerce Dept. travel advisory board41. Federal advisory act le library enmmittee42. Navy Dept. cost overruns43, AMTRAK board minutes: S. Aug. Wash. Star-News44. Defense department: My Lai report45. Networks use FOI for Nixon papers46. Agency FOI cases before Supreme Court47. NLRB advice memoranda48. National Highway safety administration49. NLRB union affidavits
FREEDOM OF INFORMATION coned.
50. Fed contract renegotiation board51. Justice Stewart hits media FOI rights52. Justice Douglas urges information subsidies53. Rd. Investigations of Newslcaks
---Pentagon InvestigationState Dept. investigationFBI investigation
Access Restrictions on Fed Crime Info.54. LEAA prior arrest records55. FBI has new procedures56. 13,000 May Day arrest records sealed57. Court says FBI records libelous58. Federal lawsuit to expunge old FBI info
59. U.S., court opposes FDA media info
Freedom of Information /State60. Ala: Birmingham News: sealed arrest records61. D.C.: Rape victim suit: Wash. Post62. Fla: University studies63. Fla: Advisory zoning committees64. Ga: Rape victim name law: Cox Broadcasting65. Idaho: Investment board: Idaho Statesman66. Ind: Evansville Press: sealed death records67. Mass: Law seals criminal records68. N.Y.:Obstructing the media law69. N.Y.:Garden City News: ad cut-off70. N.Y.: Utica Observer: City Hall exclusion71. Ore: Police may close investigation files72. Ore: Oregon Journal: Police committee73. Penn: New sunshine law74. Tenn: sunshine law75. Chattanooga Times: School Bd. suit
76. WAG,GAM; School Bd. suit77.Tex: Houston Chronicle denied arrest records
Freedom of Information/Government Harassment78. FBI: visits The Western Catholic79. U.S. Supreme Court: Police poses as newsman80. D.C.: Wash. Star-News staffer acquitted81. Louisville Courier-Journal: Reporters arrestedlg. Atlanta, Ga: Police: refuse press passes83. Indianapolis Star: Reporters indicted84. Whitesburg Ky. Mountain Eagle: Burned down
December /January
PP. 24-27
pp. 27.29
III CONFIDENTIALITY OF NEWS SOURCES
State/Executive1. Note: Calif. No-Notice search warrant raids2. Station KPFK-FM, Los Angeles3. Station KPOO-FM. San Francisco
4. The L.A. Star, Los Angeles
5. Berkeley Barb. Berkeley6. Sooner State News Agency, Oklahoma
pp. 30-31
62
INDEX
CONFIDENTIALITY cont.'d
State/Legislative7. Oklaho,na passes limited shield law8. Hawaii has first county shield law9. Wisc. rejects telephone records bill
10. Calif. passes absolute shield law11. Calif. adds magazine reporters to shield law
State/Judicial Subpoenas & Contempts12. L. Morgan, St. Petersburg Time: Contracts13. B. Hines, Miami Herald: rape interview14. R. Pendleton, Jacksonville Fla- Times Union
15. R. Smothers, New York Times16. W. Farr, Los Angeles Times17. R. Cady & W. Anderson, Indianapolis Star18. K. Wallace & F. Phillips, Lowell Mass. Sun19. R. Woodward, Washington Post20. K. McKnight & A. Alexander, Dayton Journal21. R. Mason, Marathon Fla. Keynoter
Federal Developments/Legislative22. Fed. shield law dies (S 1128)23. Fed. evidence rules (HR 5463)
24. Consumer agency: media subpoenas (S 707125. Senate telephone records bill (S 3920)26. House telephone records bill (HR 14981)27. Congressman faces censure for media leaks
Federal News Leak Investigations pp.28. FEA Reports media contacts29. Agency investigations
FBI investigationState Dept. investigationDOD investigation
30. Labor Dept. investigation: R. Hedron
Federal Developments/JudicialSubpoenas & Contempts31. Jack Taylor, Daily Oklahoman32. J L, Cox, Texas Observer
33. Brit Hume, Jack Anderson column34. W. Lord, ABC & H. Dudnick, NBC35. Watergate judge may call reporters36. W. Lewis, KPFK-FM (SLA Tape)-Jailed37. W. Lewis, KPPKFM(bombing tape)-Jailed38 Note: Just. Dept. violates guidelines39. T. Blackburn, Long Beach The Forty-Hiner40. Saxbe speech re subpoena guidelines
IV FAIR TRIAL - FREE PRESS /ACCESS TO THE COURTS
Federal JudiciaryI. Watergate Cover-Up Trial Secrecy: Note2. Gag orders3. Pre-trial publicity motions4. Sirica seals voire dire proceedings
pp. 31.32
pp. 33.34
pp. 35.36
pp.36-37
pp.37-40
pp. 41-47
INDEX
FAIR TRIAL FREE PRESS cont.'d
S. Publicity threat delays Ford testimony
6. Sirica suggests subpoenas to press
7. Reporters seek access to tapes
8. ABC, CBS. NBC seek Nixon tapes9. Sirica seals Nixon affidavits
10. Trial secrecy seen in Watergate docket
11. Sirica seals letter protesting secrecy12. Lt. Caney freed due to pre-trial publicity
---13. Appeals court scores UPI crime story14, Gag order to Phila. Inquirer appealed
15. Sup. Ct. gets Times-Picayune gag order16. Miss. court has secret jury session
17. London Times suit for deposition access18. Note: Media access to pre-trial proceedings19. Dist. Ct. seals city suit settlement20. Va. judge for TV in court21. Mo. court forever bars juror interviews
Public Record Crime Data Restrictions22. Arrest & conviction records: FBI23. Arrest & conviction records: LEAA24. Arrest & conviction records: Senate bill25. Arrest & conviction records: Juvenile Act
State Judiciary26. Ala: Arrest warrants sealed27. Calif: Ethics charge for media interview28. Califilrial site changed in SLA case29. Calif: W. Parr case: 5 day sentences30. Calif: Stockton media agree to secret witness31. Conn: Chief Justice opposes juror interviews32. D.C.: Damages for victim's name published33. Oa: Law seals victim's name34. Idaho: Statesman gagged from own depositions
35. Mass: Conviction record sealed36. N.J.: Chief Justice defends court coverage37. N.J.: Mandatory acquittal ad law38. N.Y.: Judicial inquiry sealed39. N.Y.: Taped trial evidence limited40. Ohio: Court hears secret witness41. Ore: Lawyer censured for media interview42. Tex: Houston torture case site changed43. Tex: Arrest warrants sealed44. Va. Bans all attorney interviews45. Note: Gag orders to the press: a proposal
V PRIVACY & LIBEL
1. Congress has broad privacy-secrecy bills
2. Senate to seal govt. fund info (S3418)
3. House to seal govt. grant tiles (HR 16373)
4. Senate to seal arrest records (52963.64)
5. New law seals juvenile records
States must comply-Juvenile grantsFiles available to police but not media
December /.January
pp. 47.50
pp. 51.54
3
PRIVACY & LIBEL cont'd.6. Mass. law seals conviction records
7. FBI seals arrest records
8. LEAA arrest record regulations9. Sup. Ct. privacy case: Cox Broadcasting
10. Wash. Post loses privacy suit
11. Calif. arrest record privacy suit12. Wash. D.C.: FBI privacy suit13,13,000 May Day arrest records sealed14. Ala. police files: Birmingham News15. Houston Chronicle denied arrest records16. Bridge victim privacy: Cleveland Plain Dealer17. Okla. privacy law: War dead
Libel .
18. Sup. Ct. rebuffs NASA scientist19. Sup. Ct. upholds CBS-Bill Cosby20. Sup. Ct. rules on Random House: group libel21., Charleston Daily Mail: $750,000 award22. Bebe Rebut) v. Wash. Post: appeal23. Calif. criminal libel: L.A. Star24. Indiana trade libel: ABC news25. Army Times: libel-injunction26. Ohio U. Post: public oft tidal libel27. R, Woodward: $281,0011 :udgement
28. CBS libel: NBC & ABC subpoenaed29. B. Hume: J. Anderson: libel to trial30. NBC cuts Tonight Show: trade libel
VI RIGHT OF REPLY / ACCESS TO THE MEDIARight To Reply.. .
1. McClellan right to reply proposal p. 57
2. N.J. mandatory acquittals ad bill3. Chicugo Sun-Times adopts fairness code4. National Geographic issues first retractionS. Rabbi Kortis media monitor
Pp. 55.56
Access to the Media6. St. Louis P-D reinstates cigarette ads7. Note: Cigarette ad ban round-up8. N.Y. weekly bans pro-abortion stories9. Introductory note: Sexism in media
10. McGraw Hill sexism guidelines11. HEW sexism guidelines
Access to the Regulated Media See Broadcasting
Antitrust12. Myrtle Beach Journal American13. Background note: Newspaper Preservation Act14. S.F. Bay Guardian challenges Act15. Justice Dept. administrative rule enjoined16. Anchorage Times & News petition for coverage
VII THE BROADCAST MEDIA
Fairness Doctrine1. NBC wins "Pensions" case ruling2. FCC study defends fairness rule
pp. S8.59
pp. 59.61
pp. 62.64
THE BROADCAST MEDIA cont.'d3. FCC upholds WCVBTV, Mass. vote4. ABC settles 291 day prior restraintS. Shell oil cheeks on oil profits ad6. CRS scored on Defense Dept. coverage
7. ABC. CBS. NBC. hit on Rockefeller hearings8. New media monitor group started
9. Sup. Ct. Justices question fairness rule10. Sen. Proxmire renews fairness rule attack
Equal Time11. N.J. public TV gives free time12. FCC, rules on "reasonable access"
License Renewal13. Congress act., on licenses (HR 12993)
14. FCC may void Ala. public TV licenseIS. Sup. Ct. favors minority challenger16. Wash. Post opponent has station logs
Televising Congress 7ongress.17. Joint Congressional Committee18. 20th Century FundI9. American Bar Association20. New York Bar Association
Cross.ownership and Antitrust21. FCC may ban new crossowners22. FCC asked to favor minority owners23. Just. Dept. vs Deseret News license
24. CBS, NBC. ABC win antitrust ruling
Broadcasting: General25. Fed. Campaign Act Passed
Ad limitations voidedBroadcaster records openedEqual time keptElection night news permitted
26. Appeals court bar sect hiring bias27. Public TV funding stalled28. Sup. Ct. hears lottery ban29. Reporter seeks access to Nixon tapes
30. ABC. CBS. NBC seek Nixon tapes
VIII- LABOR
I . Wichita Eagle editorialists barred from Guild2. Wash. Post cleared of Guild charges
3. Madison Capital Times adopts ethics code4. Chicago SunTimes adopts ethics codeS. W.F. Buckley, Jr. loses AMA case6. N.Y. Times investigative reporter fired7. Lowville, N.Y. Journal editor tired: taping8. American Libraries fires writer: FOI query9. Rockford, Ill. Star suspends reporter
December/January
p. o4
pp. 64.65
p. 65
pp. 65.67
pp. 67.68
pp. 69.71
4
INDEX
LABOR cont.'d
10. Jesuit S./News fires editor: dissident views11. KDGN. Seattle, requires religious loyalty oath
IX HIGH SCHOOL & COLLEGE PRESS
1. Student Press Law Center establishedHigh School.. .
2. Note: Sup. Ct. reviews due process cases3. Indianapolis otTcampus paper4. Mena, Ark., expulsion5. Columbus, Ohio, suspension6. Reynoldsville, Ohio, paper7. Baltimore. Md. censorship8. Midway navy teacher tired
9. Muncie Ind., press teacher tired10. L.A. school board media rules11. Charleston, W. Va. textbook banCollege.
12. University of Montana editor tired13. U.S. subpoena regs cover college press
14. Oklahoma college teachers tired15. Davidson (N.C.) yearbook delayed16. Colorado college editor suspended17. Ohio University reporters sued18. Student press law in prison case
A.
X MISCELLANEOUS DEVELOPMENTS
1. Newark Star-Ledger: reporters attacked2. Wash. Post: station logs vanish3. Congressman to buy media critic4. Rockefeller loan to Oceanside Calif Blade
Copyright...5. Copyright law faces major revision6. News film archive seeks copyright exemption
7. Photocopy case before Sup. Ct.
pp. 72.74
pp. 74.75
p. 76
p. 77
PRIOR RESTRAINTS ON PUBLICATION IP DISTRIBUTION
Judicial. U.S. APPEALS COURT ISSUES FIRST RULING
TO GIVE MEDIA NOTICE & HEARING INGAG ORDER CASES
In October, 1973, Susan Stranahan of ThePhiladelphia Inquirer reputed that a clamant in aperjury trial was also under indictment for conspiracy tomurder a government informer. U.S. District CourtJudge J. William Ditter later issued an oral orderdirecting all reporters not to mention the otherindictment. Violation of the order would subject thePhiladelphia media and their reporters to contemptcharges. the judge said.
Judge Diner subsequently issued a written order. TheInquirer challenged the order and the U.S. Court ofAppeals temporarily stayed it pending resolution of theappeal.
The newspaper argued that the silence order violatedthe First Amendment freedom of the press guarantee inthat it constituted a prior restraint on publication. It alsomaintained that the district court's initial order wasentered without proper procedural safeguards of noticeand a hearing.
On Aug. 8, the U.S. Court of Appeals for the ThirdCircuit used its supervisory powers over the lower federalcourts to void the district court's order. The court saidthe order was procedurally deficient because it was not inwriting, was without notice to the press and did notafford the press an opportunity to be heard.
This marked the first time that a federal appellatecourt has overturned a gag order directed against thepress by recognizing the press' right to be notified andconsulted in advance about orders limiting their rights toreport on public record trials.
The majority opinion said "the distrwt court shouldhave vacated the oral order, held a prompt hearing afternotice to the involved members of the press and theparties, and, if a silence order was deemed to be justified,reduced such order to writing with specific terms andreasons and had it entered on the district court docket."
These procedural requirements, the court noted, are"particularly necessary' in cases where the order affectsthe press' First Amendment rights.
A concurring opinion signed by three of the circuitjudges would have gone further and voided the order forlack of constitutional procedural due process of lawunder the 14th amendment. The concurring opinion saidthat procedural safeguards put into effect beforepublication was restrained would "increase the liklihoodthat decisions affecting First Amendment rights will notunconstitutionally impair the exercise of those rights."
"Different circumstances may well call for differentprocedures, but any procedure must be directed to theend of achieving a thorough and wellreasoned decisionproperly deferential to First Amendment interests."
5
In November, Judge Ditter appealed the decisiob tothe U.S. Supreme Court. Briefs have also been filed bythe American Newspaper Publishers Association and TheReporters Committee.
SUPREME COURT ASKED TO HEAR TIMES. 2.PICAYUNE GAG ORDER CASE
A New Orleans judge ordered the press in June not topublish any editorials, investigative stories or open courttestimony relating to a pre-trial hearing in a controversialcriminal case (see PCN V, p. 17); The Times Picayuneappealed to the Lousiana Supreme Court challenging theorder as unconstitutional prior restraint of the press, In a4.3 decision, the Lousiana Court refused to void theorder.
The Times Picayune then appealed to U.S. SupremeCourt Justice Lewis Powell for a temporary stay of theorder. Powell granted the stay in July 24 insofar as itapplied any direct prior restraints against the press,pending a full hearing of the-case.
Subsequently, the Times Picayune tiled an appeal forSupreme Court review. The Court has not yet saidwhether it will hear the case.
Briefs supporting the Times Picayune position havealso been filed by the American Newspaper PublishersAssociation and The Reporters Committee. In its brief,The Reporters Committee argues that gag ordersrestricting the media from reporting public record courtproceedings are void and may be violated by the mediawithout concern about the imposition of sanctions. Inaddition, the Committee argues that gag orders issued inpublic court proceedings without notice to the newsmedia affected by the order and without any opportunityto be heard during the formulation of the order violatethe constitutional concept of due process of law and aretherefore procedurally invalid, (See the story directlypreceeding this one for a fuller explanation of the DueProcess Proposal).
IDAHO JUDGE BARS NEWSPAPER FROM 3.PUBLISHING ITS OWN DEPOSITIONS INLIBEL ACTION
Ken Matthews, a reporter for the Idaho Statesman,did a series of investigative stories on the IdahoEndowment Fund Ilivestment Board (see related story,this PCN, p. a state agency which manages the invest.ment of state funds. One story charged that a member ofthe board, a !Nose stockbroker, was gully of a conflictof interest because his brokerage firm handled a largeamount of state investment funds.
The stockbroker sued the Statesman for libel. At apretrial deposition session attended by Matthews, thestockbroker and their attorneys, the stockbrokerobjected to Matthews' attempts to record the session. He
Prior Restraints/Judicial
then sought a court order barring all news reporting ofthe deposition.
A state judge subsequently issued an order restrainingthe Statesman "from making any comment" about whatthe stockbroker said at the deposition. The judge saidthat freedom of the press was "irrelevant" and that hisresponsibility was to protect the plaintiff tromharassment.
The Statesman is planning to appeal the ruling.
4. OHIO REPORTERS HELD IN CONTEMPT FORPUBLISHING NAME OF COURT WITNESS
In late June, a kidnapping trial began in the Court ofCommon Pleas in Fayette County, Ohio.
On June 25, Judge Evelyn Coffman orally orderedreporter Ed Summers of the Washington Court House(Ohio) Record-Herald not to publish the identity of amissing material witness who had been named in opencourt. Summers ignored the order, and the witness' namewas published in the June 25 edition of theR ecord- Herald .
The following day, Coffman, citing the Summersarticle, declared a mistrial in the kidnapping case.
On July 16, the judge found Summers in contempt ofcourt for violating the June 25 order. The judge statedthat Summers' action "was calculated to and did impedethe administration of justice." The judge also issued agag order prohibiting law enforcement officials frommaking extra-judicial statements about any matters thatmight ultimately reach the court.
On August 30, a hearing on the contempt charge washeld before Judge J. Donald Ratcliff of Ross CountyCourt of Common Pleas. The court found Summers notguilty of contempt, holding that "a judge has no eight togag the press for (sic) reporting actions which occurwithin the courtroom." The order relating to the lawenforcement officials was not challenged.
5. CALIFORNIA NEWSPAPERS AGREE TOSECRET WITNESSES IN CRIMINAL TRIAL
In October, during jury selection in the Californiatrial of two convicts accused of killing a prison guard, theprosecutor requested members of the press not to printthe names of the prosecution's inmate witnesses. Theprosecutor said the witnesses' lives would be in danger iftheir names appeared in print.
The reporters refused to agree to the request,contending that anything revealed in open court shouldbe subject to publication. Reporters also asked theprosecutor to give them ad% Ace notice of any motion fora gag order so that the press could obtain legalrepresentation before the order was instituted.
Several hours later, in response to a prosecutionmotion and with no notice to the press, San JoaquinSuperior Court Judge William H. Woodward issued anorder barring several local newspapers the Stockton
Record; Lodi News Sentinel, Tracy Press, MantecaBulletin, Ripon Record and Escalon Timesfrompublishing the names of prosecution inmate witnesses.The next day, the judge extended the order to include theSan Francisco Chronicle, Sacramento Bee and Sacra-mento Union. The btoadcast media and wire serviceswere not affected by the order.
Four days later, on October 16, as attorneys for theStockton Record and the McClatchy Newspapers(publishers of the Sacramento Bee) were preparing tochallenge the order in an appellate court as a direct priorrestraint on the press, Judge Woodward conferred withthe attorneys and Stockton Record publisher Robert P.Uecker and issued a compromise order. The new order,accepted by the press, said that inmate witnesses wouldbe sworn in chambers and would be identified in opencourt by aliases only.
NOTE: A similar order by a San Bernardino,California, trial judge barring publication of the namesof inmate witnesses was voided by a state appeals court in1973 (see PCN I, p. 6).
SUPREME COURT TO DECIDE CONVICTIONFOR ABORTION AD
Awaiting Supreme Court decision after oralagruments this fall is Bigelow v. Virginia, a caseinvolving the scope of First Amendment protection towhich newspaper advertisements are entitled. Jeffrey C.Bigelow, editor of the Charlottesville Virginia Weekly,is appealing a conviction and $500 line for publishing anadvertisement for an abortion referral service in violationof a state law which makes it a misdemeanor to advertise"or in any other manner encourage or prompt theprocuring of an abortion."
Bigelow is arguing that the statute should be declaredunconstitutional because abortion is a constitutionallyprotected operation and therefore an abortion ad is fullyprotected by the First Amendment. The VirginiaSupreme Court, however, has twice upheld Bigelow'sconviction, on the ground that government regulation ofcommercial advertising in the medicalhealth field ispermissible under the First Amendment, regardless ofthe legality of the operation (see PCN IV, p. 47 and PCNV, p. 23).
COURT LIFTS BAN ON SOUTH AFRICA JOB 7.
ADS IN N.Y. TIMES BUT SAYS ADS NOT PRO.TECTED BY FIRST AMENDMENT
In October 1972, a complaint was filed with the NewYork City Commission on Human Rights charging thatThe New York Times had violated a city statute bypublishing advertisements for employment in SouthAfrica.
The complaint alleged the Times was liable as an"cider and abettor" of employers who violated a law
6
to
Prior Restraints/Judicial
prohibiting job advertisements which express "directly orindirectly" limitations as to race.
After a hearing, the Commission issued an opinionand an injunction on July 19, 1974 prohibitine the Timesfrom printing any further ads recruiting employees forjobs in South Africa.
The Commission declared that the ads "expresseddiscrimination" by mentioning South Africa as thelocation of the jobs, although the ads made no referenceto race. The Commission found in effect that the words"South Africa" had become code words for racialdiscrimination, because of that country's well-knownwhite supremacy policies.
The Times appealed to the New York State SupremeCourt, arguing the Commission's decision violated theFirst Amendment because it instituted governmentburden on the press. because ads for foreign employmentcontrol over what can be published.
The Times further claimed that if left standing, theCommission's decision would impose an unconstitutionalburden on the press, because ads for foreign employmentcould not safely be printed without an investigation ofthe employment practices of the country involved.
On October 30, the court reversed the Commission'sdecision and lifted the injunction against the Times.
The court rejected the findings that the South Africajob ads were code words for discriminalion and held thatthe Commission's action was in excess of its powers,which did not include oversight over foreign employmentpractices.
But the court rejected the Times' First Amendmentarguments. Relying on the Pittsburgh Press sex-desig-.nated want ads (see PCN //, p. 21), the court foundthe ads fell within the area of commercial advertising andhence were unprotected by the First Amendment.
8. WSBTV ATLANTA: CRIME VICTIM.GAG (Seethis POI, p. 53)
PRIOR RESTRAINT AGAINST MARCHETTIBOOK CONTINUES SIX MONTHS
In April, U.S. District Court Judge Albert Bryanrejected in large part an effort by the government tocensor portions of the controversial book on the CIA byauthors Victor Marchetti and John Marks. He rejectedall but 26 of the 168 deletions in the book sought by thegovernment, but stayed that order pending appeal. (SeePCN IV. p. 43 and PCN V, p. 20).
The result of that stay has been a prior restraint nowcontinuing into its sixth month. The bookThe CIA:The Cult glistelligetteeis now in its third edition with168 blank spaces in place of the 168 deletions underlitigation.
7
The Fourth Circuit Court of Appeals had agreed todecide the appeal in the case on an expedited basis.Although the appeals court heard oral arguments Juneit has yet to hand down its decision.
291 DAY INJUNCTION VS ABC NEWS ENDS IN 10.
SETTLEMENT; ABC ABANDONS APPEAL
In November 1973, a manufacturer of plastic babycribs objected to a statement of an ABC-TVdocumentary on fire hazards entitled "ABC News CloseUpOn Fire!" The company claimed the film segment,which showed one of its baby cribs being burned, waslibelous and misleading because it condensed a10-minute test into 40 seconds. The crib manufacturerobtained a trade libel injunction against the segment inan Indiana state court.
Complying with the injunction, ABC telecast thedocumentary on November 26, 1973 with the 40 -secondcrib burning segment deleted. In its place ran a messagethat an omitted segment was then in litigation.
Apparently the first prior restraint against networknews, the injunction was one of the longest priorrestraints of any kind. It lasted 291 days.
Restraint LiftedOn June 14, 1974, an Indiana appeals court
overturned the injunction as unconstitutional priorrestraint. It rejected the crib manufacturer's argumentthat the regulated media are entitled to less FirstAmendment protection than other media and held that"subject to specified controls the basic concept offreedom of speech and freedom of press applynonetheless to the broadcasting industry" (see PCN IV,p. 5 and PCN V, p. 20).
The crib manufacturer appealed to the State SupremeCourt, with the result that the order overturning theinjunction was stayed, and the prior restraint remainedin effect.
Finally, on September 13, 1974, the injunction waslifted after 291 days. On that date the appeal wasdismissed by consent of both parties. That evening'snews carried the burning crib scene, updated to a2-minute sequence that showed the burning of the plasticcrib. followed by an attempt to burn a wooden crib.
NONCOMMISSIONED OFFICERS SEEK IN 11.
JUNCTION AGAINST ARMY TIMES IN LIBELSUIT
In July and August, the Army Times newspaper,distrituted to members of' the armed services, ran aseries of three articles in its bi-monthly "Family"magazine section discussing the insurance program runby the Non Commissioned Officers Association (NCOA).
In August, the NCOA filed a $10 million libel suit infederal court in Texas alleging that the articles were
Prior Restraints/Judicial
"false. misleading and defamatory" in that theysuggested "that NCOA is nothing amore thy- a device tobilk noncommissioned officers out of their earnings byselling them high-cost life insurance."
In addition, the NCOA sought a. permanent injunctionagainst the Army Times prohibiting it from "publishingor representing false, misleading and defamatorymaterial" about the NCOA or its activities.
No trial date has been set.
12. US COURT WON'T BAN CONSUMER ADINFORMATION
In June, the Denver Advertising Review Board,composed of local businessmen, convened an informaladversary proceeding to judge the fairness of anadvertisement of Pat Walker's Ladies Slenderizing Salonfollowing a complaint filed by the local Better BusinessBureau.
Board decisions regarding advertisers who fail toconform to the Board's findings within 10 days aredistributed to the news media and to interestedgovernment agencies as an incentive to compliance.
Walker's boycotted the hearing on the grounds thatthe Review Board lacked jurisdiction, acted in restraintof trade and the hearing method used lacked proceduraldue process of law.
After receiving notice of the Board's ruling against it.Walker's filed suit in federal court seeking a preliminaryinjunction to stop the distribution of a Review Boardpress release about the Walker's advertisement tomembers of the news media and the public.
In July. the court denied the injunction due to techni-cal defect and because it was an unconstitutional priorrestraint of the press.
13. WASHINGTON POST CRIME VICTIM- SUIT(See this PCN, p. 53)
14. SEC MOVING TOWARDS REGULATION OFFINANCIAL NEWS REPORTING & CONTENTIN TWO UNPRECEDENTED CASES
NOTE: Two recent cases raise the possibility that theentire area of financial reporting may be increasinglysubject to prior restraints on content.
Under the two federal securities acts, companies,corporate officers, dealers and brokers are subject tonumerous disclosure rules requiring them to convey "fulland fair" information to the investing public. Untilrecently. there were few cases where these disclosurerules had any direct impact on the press.
Now, however, there are indications that the Securitiesand Exchange Commission is moving toward requiringfinancial reporters to disclose their stockholdings as a
8
condition for reporting certain types of financial news.The two cases discussed below are both unprecedentedOne i the first civil fraud case filed by the SEC against
a financial writer. The other is the first criminalprosecution of a financial writer under a little-usedprovision of the Securities Act of 1933.
The disclosure problem was a major issue in bothcases.
Because of the potential securities law problems, manynewspapers have fixed policies forbidding reporters totrade in the stock of companies they write about.
The only other known recent case of an SEC actionagainst the news media involved The Wall StreetTranscript, a weekly financial report consisting mainly ofreprints of investment letters but containing someindependent editorial content (see PC' 1/, p.
In that case, the SEC claimed that the Transcript hadviolated the Investment Adviser's Act of 1940 by failingto register under the Act as an investment adviser. Itclaimed the Transcript was not a "bona fide newspaper"excluded under the Act. A district court dismissed theSEC complaint, but in 1970 the U.S. Court of Appealsupheld the SEC's right to investigate the press under the1940 Act. The Supreme Court let the appeals courtdecision stand.
SEC FORCES CALIF. FINANCIAL WRITER TO 15.
CENSOR ANY STORY INVOLVING A STOCKHE OWNS
In July 1972, the Securities and ExchangeCommission filed suit against Alex N. Campbell,columnist and former financial editor of the Los AngelesHerald-Examiner; charging him with fraudulentlyprofiting from sales of stock purchased shortly beforethey became subjects of his column.
Also charged in the SEC civil lawsuit was Campbell'sson, Alex N. Cambpell Jr., a former stockbroker who ispresently editor and publisher of the Western Financial
Journal, a monthly publication based in Los Angeles.It was the first civil fraud action ever brought by the
SEC against a financial writer.The Campbells were charged under section 10(b) of the
Securities and Exchange Act of 1934, which requiresdisclosure of all material facts in market informationabout a security.
The SEC alleged the Campbells "secretly andrepeatedly made profits for themselves while defraudingother investors" by purchasing companies' stock,publishing articles about the companies and then quicklyselling to take advantage of short-term price risesoccurring after the articles appeared. The SEC allegedthe Campbells did this more than 100 times over afive-year period.
The Commission sought a permanent injunctionagainst the alleged violations and disgorgement of thealleged profits obtained.
12
Prior Restraints/Judicial
Charges Denied
The Campbells denied the stock manipulation chargesand contended that the articles in question hac' n effecton the prices of the stocks written about.
They also argued that an injunction would constitute aprior restraint abridging their First Amendment rights.
In response to the SEC's charge that the financialwriters should have disclosed their position in any stockwritten about, the Campbells argued that such a dis-closvre would only have increased the likelihood that theprice rises alleged by the SEC would ultimately haveoccurred.
In October. the case was settled by a consent decreeone day before the Campbells were scheduled to go ontrial in Los Angeles.
Without admitting or denying the charges againstthem, the Campbells agreed to the terms of a permanentinjunction prohibiting them from trading in any securitywhich they have reason to believe may be the subject ofany publication, and directing them to disclose in anyarticle they write any stock ownership in any companywritten about. They also agreed to pay $5,000 into afederal court. The SEC originally had sought $25,000.
The Campbells later denied yinlatin? any law antistated they agreed to the consent order to avoid furtherheavy legal expenses.
16. N.Y. FINANCIAL WRITER INDICTED FORNOT DISCLOSING PAYMENT BY FIRM HEWROTE ABOUT; "ANTI-TOUTING" LAWUSED
The September 29, 1972 issue of Value Line Selection& Opinion, a weekly investment publication, containedan article by William Eric Aiken strongly recommendingthe purchase of Power Conversion, an over-the-counterstock. Aiken, who was then editor of Value Line, wrotethat the "heady multiple" being placed upon the stockappeared in line with the company's performance andprospects, and he described the stock as a "rewardingcommitment" for venturesome investors.
On October 24, 1974, a federal grand jury indictedAiken for failing to disclose in the 1972 article orelsewhere that he received a $15,000 payment from twodealers in the stock to write the article. The indictmentwas based upon the so-called "anti-touting" provision ofthe Federal Securities Act of 1933, which prohibitsanyone from publishing an article about a security whichhe has been paid to write by an issuer, underwriter ordealer, without disclosing the payment and its amount.
Aiken's indictment is believed to represent the firstprosecution of a financial writer under the provision.
Two dealers indicted together with Aiken were chargedunder the securities act with giving him the authorized
payment.
All three men were also charged with mail fraud. Eachfaces a maximum penalty of five years in jail and a$1,000 tine on each of six counts of mail fraud, and fiveyears in jail and a $5,000 tine on each of six counts ofsecurities law violation.
DISTRIBUTION
LONG BEACH NUDE NEWSRACK ENJOINED 17.
California Superior Court Judge Roy J. Brown granted,a preliminary injunction July 19 preventing enforcement'of a Long Beach municipal ordinance banning sidewalknewsracks displaying pictures of nude bodies. Theinjunction was issued in response to a taxpayers suit filedby Bernice L. Hogan who claimed city funds were beingwasted to enforce an ordinance she said violated freedomof the press. (For other newsrack suits, see PCN V, pp.28-30).
FEDERAL COURT VOIDS PENN. NEWSRACK 18.BAN
In March 1971, the Swarthmore, Pennsylvania CityCouncil passed an ordinance forbidding obstructionsalong streets and sidewalks to allow less congestedpassage in the city.
Swarthmore city officials notified the PhiladelphiaInquirer in April, 1974, that two of their newsracks werein violation of the ordinance, and removed them, Thepaper filed suit in federal court.
The court entered a temporary restraining orderbarring enforcement of the ordinance pending a fullhearing. The action marked the second time a federalcourt had considered the question of the constitutionalityof city ordine regulating the use and placement ofnewsracks at .., I: streets (see PCN V pp,28.30).
A fede..,. 01,,tti.-. Court Judge permanently struckdown the rdir Imo ; ugust 8 as it applied to newsrackson First A., it grounds. The court said thatnewsrack soles ...utig public streets were a "constitution-ally protected means of distribution," The court alsonoted the public's right of access "that is free aspossible" to the means of distribution.
The court's opinion, however, left open the possibilityof "reasonable regulation" of newsracks relating to:
the size and location of news stands;aesthetic considerations and the appearance of
newsracks;advertising to appear on the stands themselves,
9
13
Prior Restraints/Judicial
'19. FED. CT, CITES STUDENT PRESS CASES INALLOWING INMATE NEWSPAPER
Authorities at the Vermont State Prison halteddistribution of the January 1973 issue of a monthlynewspaper published by inmates. The prisoners sued infederal court under the civil rights laws, seeking aninjunction prohibiting interference with their publica-tion.
In October 1974, the court ruled in the inmates' favor.The court found close analogies in the issues raised incases concerning high school and college newspapers andthen cited those cases in support of its holding thatprison officials could not censor the content of the prisonnewspaper unless that newspaper threatened prisonsecurity, prison order or prison rehabilitation.
.20. GOVERNMENT'S EMERGENCY POWERS TOSEIZE FOREIGN NEWSPAPER_S BEFORESUPREME COURT
In July 1969, Washington, D.C., resident SusanneOrin returned to the U.S. from a brief visit to Canada,crossing the border at Niagara Falls. Federal customsagents there searched her luggage and confiscated threepaperback books published and printed in NorthVietnam.
The three publications. The Vietnamese Problem,North Vietnamese Medicine Facing the Trial of War andLiterature and Liberation in South Vietnam, wereburned the same day by the agents, despite urrin'sinsistence that they be returned to her and her refusal tosign a waiver form abandoning them. There was nohearing prior to the seizure or destruction.
Customs agents justified their actions citing violationsof the Trading with the Enemy Act. The act prohibitsunlicensed business transactions between Americans andNorth Vietnamese to cut off any economic benefitflowing from the U.S. to North Vietnam through thepurchase of goods.
The Act is one of several hundred statutes giving thePresident broad economic and social control duringperiods of "National Emergency." The bill dates back toWorld War I and was reactivated in 1933 underPresident Roosevelt. Since then, the existence of acontinuous national emergency has been ordered byPresidents Truman, Eisenhower, Kennedy, Johnson andNixon.
Under the Act, certain materials may be licensed forpurchase from North Vietnam, a process which takesabout two months. In addition, gifts are exempted fromcoverage under the Act although the burden is on the giftrecipient to prove the giStimm
Orrin filed suit in federal court challenging the seizureand censorship of the books as an unconstitutional priorrestraint of the press in derogation of the FirstAmendment.
On April 27. 1972, U.S. District of Columbia DistrictCourt Judge Barrington D. Parker upheld thegovernment's seizure. The court said it was "sufficientlysatisfied that regulation of the non-speech element isbeing effected in a narrow fashion so as to minimize anypossible incidental limitation upon Plaintiff's FirstAmendments rights,"
Orrin appealed to the District of Columia Court ofAppeals which also upheld the seizure in June 1974.
The case is currently pending appeal to the U.S.Supreme Court.
SEARCH WARRANTS SEIZURES OFNEWS
PRIOR RESTRAINTS BY SEARCH WARRANT 21.
SEIZURES OF NEWS MEDIA FILES AND 22.
DOCUMENTS: STATION KPFKUFM, THE L.A. 23.
STAR, STATION KPOO.FM, THE BERKELEY 24.
BARB & THE SOONER STATE NEWS AGJNCY 25.(See this PCN, p. 30)
Legislative
NEWSPAPER BARS LOTTERY ADS 26.
A federal anti-lottery statute, 18 U.S.C. 1302, whichwas passed in the late 1800's, forbids the use of the mailsto further a lottery.
Because of this statute, the Bangor (Maine) Daily Newshas suspended publication of advertisements for theMaine State Lottery. About a quarter of the Newscirculation is sent through the mail, and the newspaperdoes not have the facilities to print two differentedtitions. Newspapers in the 13 states that presently havelotteries face similar problems.
On Septeinber 6, Attorney General William Saxbewarned the states that their lotteries may be violatingfederal law, including various postal regulations. Thestates claim that the federal lottery laws apply only toprivate lotteries and not to lotteries run by stategovernments.
There are presently four bills pending in the Senatewhich would exempt state lotteries from the federal anti-lottery laws. One such bill, S. 1186, was introduced bySen. Richard Schweiker (RPa.). It has been before theSenate Judiciary Committee since March 1973. All fourbills would permit the use of the mails to advertise andreport the results of lottery drawings.
This controversy arose soon after the U.S. SupremeCourt agreed to review a 1971 Federal CommunicationsCommission ruling which held that radio and televisionstations cannot broadcast winning lottery numbers on
10
14
Prior Restraints/Legislative
the day they're drawn and any advertisements aboutlotteries. The U.S. Court at' Appeals for the Third Circuitstruck down the ruling as it applied to the broadcastingof the winning numbers, but upheld the ban on lotteryadvertising (see PCN IV. pp. 42.43, PCN V, pp. 78.79).
NOTE: A compromise bill, H.R. 668, introduced byRep. Peter Rodino (DN.J.) passed the House JudiciarySubcommittee on Claims and Governmental Relations inearly October. The bill, which is similar to the proposedSenate legislation, will be debated by full committee afterthe election recess.
27. HOUSE ARMED SERVICES COMMITTEEAPPROVES PRESIDENTIAL CENSORSHIPPLAN BUT RULES COMMITTEE REJECTS IT
In 1950, Congress passed the Federal Civil DefenseAct which gives the President broad emergency powers"whenever an attack on the United States has occurredor is anticipated." In October 1969, President Nixonissued an executive order which empowered thePresident, acting under the authority of the 1950 law, toestablish a National Censorship Plan.
Under this plan, contended critics such as Rep. LesAspin (D.Wisc.) and columnist George Will, thePresident can seize control of the nation's press. F.Edward Hebert, chairman of the House Armed ServicesCommittee, disagreed: "Under this authority, thePresident cannot, I repeat, cannot control the media."
The law, which must be extended every four years, wasapproved by the House Armed Services Committee afterthirty minutes of debate on July 25, 1974. The HouseRules Committee held more extensive hearings on thelegislation and, citing the bill's potential abuse, killed iton a 7.4 vote in September.
28. HOUSE SUBCOMMITTEE PUSHES BILL TOPUNISH MEDIA FOR CIA STORIES
The House Armed Services Subcommittee onIntelligence considering its bill (H.R. 18545) to amendthe National Security Act of 1947, is planning furtherhearings this year to toughen its proposal to stop nationalsecurity leaks (see PCN V, p. 60).
The bill was introduced by Subcommittee ChairmanLucien Nedzi (D.Mich.) and would require the director ofthe CIA to "develop appropriate plans, policies andregulations" for the dissemination of information.
The Subcommittee's earlier proposal to have theAttorney General prosecute violations of the regulationsran into trouble earlier this year when JusticeDepartment officials testified that the bill did not conferpenalties for violation of the regulations. The onlypenalties that would apply for violations of the Director's
regulations under the Nedzi bill would be those penaltiescurrently prescribed by existing criminal laws.
Subcommittee members hope to reach agreement' during this session of Congress on a new wording of thebill to give the CIA additional statutory authority topenalize leaks of classified material.
NOTE: See PCN V, pp. 59.60 for other articlesdiscussing the CIA's efforts to limit the Supreme Court'sholding in the Pentagon Papers case which...requires anevidentiary showing of a "clear danger" to 'the nationalsecurity before any prior restraint on news reporting canissue against the media.
PROPOSED OFFICIAL SECRETS ACT STALL. 29.
ED IN SENATE (See this PCN, p. 17)
CIA PRESS INJUNCTION BILL STALLED
A draft amendment to the National Security Actproposed in July by CIA director William Colby is stillpending in the Office of Management and Budget (seePCN V , p.59). The proposed legislation would allow theissuance of an injunction against publication of any newsarticle containing information which the director of theCIA deemed as claSsified.
Media sources have viewed the Colby proposal asanother attempt to legislatively void the Pentagon Papersdecision which requires an evidentiary showing of a"clear danger" to the national security before any priorrestraint can issue against the media.
30.
DELAWARE SIGNED EDITORIAL BILL AD. 31.
VISED UNCONSTITUTIONAL
The Delaware General Assembly enacted a bill torequire newspaper editorials to be signed by theirauthors. The bill was accompanied by a synopsis givingthe following rationale for the measure: "Becauseeditorials are often written in an attempt to influencelegislation or influence the outcome of an election, thepublic is entitled to know the identity of' the personwriting the editorial, so that people may better judge itsmerits."
In July, the Delaware Supreme Court advised that thelaw would be unconstitutional on its face as anabridgement of freedom of the press. The court'sadvisory opinion relied on a 1960 Supreme Courtdecision that anonymous handbills are protected by theFirst Amendment, a recent Maine decision striking downa similar signed editorial bill (see PCN III, p. 19) and theSupreme Court's recent decision in Miami Herald v.Tornillo (see PCN V, p. 1).
Delaware Governor Sherman Tribbitt announced thathe would abide by the advisory opinion and not sign thebill into law. But he added that such legislation wouldnot be proposed if "the press was very mindful of itspower and concomitant responsibility."
Prior Restraints/Legislative
32. NEVADA CAMPAIGN SPENDING LAWSTRUCK DOWN AS UNCONSTITUTIONALPRIOR RESTRAINT
In 1973, the Nevada state legislature passed a
campaign spending law which required all newspapers,radio and television stations to keep separate accountson advertising for political candidates and to tile thoserecords vdth the Secretary of State. The statute alsobarred the p, from accepting political ads fromanyone but the candidate or "his authorized repre-sentative."
Challenging the law in a suit tiled early this year, CalSunderland, publisher of the Winnemucca HumboldtSun, claimed that the legislation burdened the pressunneces:,arily and placed the media in the role ofpolicemen.
On October 9, a county District Court judge declaredthe campaign spending law unconstitutional, ruling thatit "has a chilling effect on the process of legislativeadvertising. places a prior restraint on the publicationthereof, and discriminates against specified media."
The state attorney general said he would not appealthe decision.
33. OKLAHOMA COURT VOIDS CHALLENGE TOPUBLICATION BAN OF NAMES OF DEADVETS
In 1970, the Oklahoma legislature enacted a law whichmakes it a misdemeanor to display or publish the namesof war dead "for the purpose of any anti-war, anti-policeaction or antidraft demonstration." Violations weremade punishable by a jail term of 30 days to one year, afine of up to MO, or both.
A class action suit was brought in an Oklahoma statecourt seeking an injunction against enforcement of thestatute and a declaration that it violated the FirstAmendment. The suit was filed on behalf of all personsintending to participate in an anti-war demonstration tobe held in Cleveland County, Okla., on Labor Day, 1971,and on behalf of the state War Resister's League and thestate chapter of the Vietnam Veterans Against the War.
The trial judge declared the law unconstitutional andtemporarily enjoined its enforcement, but in January1974, the Supreme Court of Oklahoma reversed withoutreaching the First Amendment issue. The court held thatthe class action plaintiffs had not met the proofrequirements which are necessary in order to get aninjunction in a case involving a criminal law.
An appeal was taken to the Supreme Court, but onNovember 11, the court declined review. That left theOklahoma SupremeCourt opinion, and hence thechallenged law, in effect.
34. POLITICAL ADVERTISING CERTIFICATIONREPEALED (See this PO 1 p. 67)
II FREEDOM OF INFORMATIONPress Access to State tliP Federal Executive to Legislative FunctionsThe Presidency
1. FORD-NIXON TAPES AGREEMENT IS TESTCASE ON OWNERSHIP OF PRESIDENTIALPAPERS
INTRODUCTION: WHO OWNS PRESI-DENTIAL PAPERS ?
The issue of whether a former President ownsandhas the right of exclusive access to- -documents preparedduring his Administration has never been resolved.
Most past Presidents have treated their papers as theirown property but most have also deposited their ma-terials with the Library of Congress or in presidentiallibraries with varying provisions of public access.
In an agreement signed by General Services Ad.ministrator Arthur F. Sampson on September 6 (the daybefore the pardon), former President Richard Nixon wasgranted not only ownership rights but full authority tocontrol access to all documents and tapes accumulated inthe White House during the Nixon Administration.Subject to certain time limitations, Nixon was also giventhe right todestroy all of his presidential materials.,
Thus, not only was Nixon claiming title to originaldocuments with an estimated value of millions of dollars,he was asserting a right to deny access to informationabout his presidency. Not surprisingly, representatives ofthe news media, the academic world, law enforcementand members of Congress voiced strenuous objections tothe NixonSampson agreement on grounds both ofproperty rights and access.
2.. TERMS OF THE NIXONSAMPSON AGREE-MENT
0-Ownership. Nixon was recognized as the "ownerand custodian" of the materials. He was given "all legaland equitable title" to the White House documents andtapes, including "all literary property rights."
2) Custody. The materials were to be transferred fromthe White House and deposited in a storage facility nearSan Clemente, owned by the government and maintainedat public expense.
3) Access. The agreement recognized that Nixon had"sole right and power of access" to the materials.Entrance to the storage facility would require the use oftwo keys, one in the possession of Nixon and the othercontrolled by the Archivist of the U.S. All requests foraccess to the materials would be referred to Nixon. If asubpoena was issued to the government to produce any ofthe materials, Nixon would be immediately notified so hecould raise "any privilege or defense" he might have.
4) Preservation. Under the agreement, all the Nixontapes would be destroyed at the time of Nixon's death oron September 1, 1984, whichever occurred first. Nixoncould also destroy any specific tapes after September 1,1979. All documents other than tapes would be stored forthree years, during which time Nixon could reproduce
them but could not remove any originals. After threeyears, he could withdraw the original documents and dis.pose of them as he saw fit.
The agreement was supported by a legal memorandumfrom Attorney General William Saxbe which concludedthat presidential papers are owned by the President in.volved, This conclusion was largely based on tradi-tionmost Presidents from the time of George Wash.ington, according to the memo, have regarded WhiteHouse papers and historical materials "whether of aprivate or official nature" as their own property.
Other commentators pointed out that case law supports the general proposition that documents preparedby public officials conducting official business ongovernment time and using government materials belongto the government, not to the individual governmentofficial. They also observed that past practice has notbeen uniformthat, in fact, other Presidents and p ablicofficials have allowed the government to assume controlof their papers.
SPECIAL PROSECUTORS OBJECTIONS 3.
When then Special Prosecutor Leon Jaworskiexpressed concern that implementation of the agreementwould hinder his access to materials needed in Watergatetrials, President Ford agreed to keep the Nixon documents and tapes under White House control pendingfurther discussions with the Special Prosecutor's Office.
CONGRESSIONAL ACTION
Members of Congress also acted in opposition to theNixonSampson agreement. On October 4, the Senatepassed (by a 56 to 7 vote) a bill introduced by Sen,Gaylord Nelson (S. 4016) that provided for continuedgovernment control of the Nixon presidential materials.The bill also directed GSA to issue regulations allowinggeneral access to the materials except for national securiaty information or in cases where disclosure "is likely toimpair an individual's right to a fair and impartial trial."Similar measures proposed in the House were not actedon before the election recess.
4.
COURT ACTION: NIXON AND NEWS MEDIA 5.
LAW SUITS
With the tapes still being held in the White Housetemporarily, attorneys for former President Nixon filedsuit in federal court on October 17 seeking immediateimplementation of the NixonSampson agreement. Thesuit claimed that the delay in implementation interferredwith Nixon's contractual rights and inhibited his ability"to protect the constitutionally based privilege of con-fidentiality in his presidential materials,"
Four days later, The Reporters Committee, the American Historical Association, the American Political
13
17
Freedom of Information/The Presidency
Science Association and several individual reporters,historians and political scientists filed suit seeking tovoid the Nixon-Sampson agreement, contending that thepresidential materials belonged to the Government andthat the public, subject to certain safeguards, shouldhave access to them. The suit said that the presidentialdocuments "constitute valuable, irreplaceable informa-tion resources of profound importance to plaintiffs in theconduct of their professions," and that journalists andhistorians would be "irreparably injured" if ownershipand custody of the materials were transferred to RichardNixon,
Columnist Jack Anderson filed .a separate action inopposition to implementation of the Nixon-Sampsonagreement, The Special Prosecutor's office also opposedthe Nixon suit.
6. THE TEMPORARY RESTRAINING ORDER
On October 22, U.S. District Judge Charles R. Richeyissued a temporary restraining order barring the FordAdministration "from effectuating the terms and con-ditions" of the Nixon- Sampson agreement. He orderedthat all the materials be kept at the White Housepending resolution of the ownership question. Nixon andformer White House employees who are defendants inthe Watergate trial were given access to the materials butonly for the purpose of preparing testimony.
Judge Richey also said he would allow access in re-sponse to subpoenas or a request from the Special Prose-cutor and "for purposes of current governmentbusiness," He insisted that during any search of thematerials a representative of the Ford White House and aNixon representative both be present and that they "shalltake such steps as are necessary to assure that the searchfor and copying of said materials will in no way destroy oraffect the original character of any of the materials . . ."
Several days following Judge Richey's ruling, theAmerican Civil Liberties Union filed a suit on behalf ofthe Committee for Public Justice, an organization com-posed of authors, lawyers and historians, claiming a rightto accesq under the Frmlom of Information Act to allpresidential tape recordings subpoenaed by the HouseJudiciary Committee in its impeachment investigation.
7. PRESIDENT FORD & THE PRESS: ANASSESSMENT OF THE PRESS OFFICE BY AWASHINGTON CORRESPONDENT
"...I hope the White House Press Corps is ready foranother Ron, I'm a Ron, but not a Ziegler, I can tell youthat."
White House Press Secretary Ron Nessen at hisfirst briefing for reporters, September 20, 1974.
Relations between the Washington press corps and theWhite House, which deteriorated badly in thepost. Watergate period of the Nixon Administration,have improved somewhat under the new President. Forone thing, the President himselfthe best news source,in most casesis more available and open to reporters,
In the view of many White House correspondents,however, the level of White House candor is still not whatit should be, and the availability of full and accurateinformation is still a problem to be dealt with by theworking press, In some ways, the role of the reporter isharder in the Ford Administration because of theinexperience and (hopefully temporary) ineptness of theWhite House Press Secretary and his staff.
Press Secretary Ron Nessen, a former NBC Newscorrespondent who was drafted from the press room byPresident Ford after his first Press Secretary, JeraldterHorst, resigned in a dispute over his own lack of accessto information (see this PCN, p. 15), meets with thePresident for a half hour every morning before facingreporters at the daily White House press briefing.Nessen's style is to try to get Ford's thinking on currentissues by discusssing them directly with Ford and hissenior advisors.
Leaving the administrative details of running the PressSecretary's office to his subordinates, Nessen monitors asmany private White House meetings as he can, and laterprovides reporters with summary "fills" of thediscussions.
Briefing Book
Unlike former President Nixon's press secretary,Ronald Ziegler, who memorized or "winged" his answersto reporters' questionsacquiring in the process areputation as a dissembler and artful dodgerNessenhas aimed for concise and accurate responses, even tothe point of preparing a daily briefing book with theanswers to all the likely questions written out and filed bysubject.
Nessen's technique is to distill every question down toits general subject area, look up the subject in hisnotebook and read back the answer. This leads to someconfusion when Nessen's prepared answer fails to fit thequestion, He has been known to chide reporters for notasking questions, the answers to which he has in hisnotebook. But when a question is asked for which he hasno written answer, he frequently is stumped for aresponse. And there are times, just as in the Nixon WhiteHouse, when the Press Secretary is under strict ordersnot to take questions dealing with particularly sensitivesubjects.
This happened in November, for instance, when theWhite House and the Special Watergate Prosecutorreached a compromise agreement on access to the Nixontapes. On many foreign policy questions, Nessen refersthe reporter to the State Department, which refers him
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Freedom of Information/The Presidency
back to the White House, and so ori. One correspondenttold Nessen he was engaging in a "ping pong strategy,"designed to wear down the press.
In the Ford White House, routine press queries arehandled promptly by an increasingly efficient staff ofdeputy and assistant press secretaries, who can also helpreporters reach senior staff aides. One thing neverchanges, regardless of who is President: White Houseaides don't like to return reporters' phone calls, and will .,
avoid doing so whenever possible.
8. GERALD TERHORST RESIGNS AS PRESSSECRETARY, CITING INCORRECT INFORMATION
On September 8, presidential press secretary JeraldterHorst resigned his post because of President Ford'spardon of Richard Nixon and because he felt he wasbeing kept in the dark about important White Housedecisions.
Ter Horst said he had not been told about the Nixonpardon until the day before it was announced.
He also said that he had been misled by highadministration officials on a number of differentmatters, and that this caused him to issue misleadingstatements to the news media.
Besides the pardon, terHorst had been told by WhiteHouse officials that Alexander Haig would remain in theFord White House. Two days later it was announced thatHaig would probably become Supreme Commander ofNATO.
Also, terHorst relayed to the press an assurance fromthe administration that a recent White House visit byRepublican National Chairman George Bush was merelyroutine. The next day Bush was named U.S. envoy toChina.
Before coming to the White House, terHorst wasWashington bureau chief for the Detroit News. Herecently returned to the News as a Washingtoncolumnist.
9. NETWORKS AGREE TO COVER FORDSPEECH LIVE AFTER PROTESTS BY WHITEHOUSE
On October 15, President Ford was scheduled to makea major economic address before the Future Farmers ofAmerica in Kansas City.
Prior to the speech, the three networks had decidednot to give it live coverage.
This decision, however, did not sit well with the WhiteHouse. Shortly before noon on the day of the speech, aWhite House official telephoned Frank Jordan, chief ofthe NBC Washington Bureau and head of the networknews pool committee, with a formal request for livenetwork news coverage.
The networks agreed to the presidential request andgave the speech live coverage,
White House press secretary Ron Nessen said therequest was not tantamount to an order. He describedthe speech as "a special speech...directed at the people,"
NETWORKS AGREE TO COVER FORD 10.
SPEECH LIVE AFTER PROTESTS BY WHITEHOUSE
Shortly after Gerald Ford became President, NBC,ABC. and CBS each asked for an exclusive presidentialinterview.
The first White House response came in mid-October,when Press Secretary Ron Nessen offered to arrange aninterview between Ford and CBS correspondent WalterCronkite. As Nessen asked that the interview be airedshortly before the November 5 elections, CBS declinedthe offer, citing its potential to influence the outcome ofclose congressional races. The network asked Nessen toreschedule the interview.
Nessen did not respond to the request. Instead, therewas an unattributed statementCBS says it came fromthe White House saying that the network had rejectedthe offer because of its bitterness over the FutureFarmers of America incident (see above).
Nessen then offered the interview to ABC. AlthoughABC News president William Sheehan agreed with CBS'decision to postpone, he said that ABC's plan was to filma non-political "travelogue" at Camp David, and thenetwork made a tentative decision to accept Nessen'soffer.
With the interview scheduled for two days before theelections, ABC sent camera crews to Camp David onOctober 26. Shortly thereafter, however, the networkreversed its decision and postponed the interview.
Federal Legislative
CONGRESS OVERRIDES FORD VETO OF 11.FREEDOM OF INFORMATION ACT
The House of Representatives approved in March aseries of amendments (H.R. 12471) designed to make the1966 Freedom of Information Act more useful and ac-cessible to the press and public (see PCN IV p. 35). OnMay 30, the Senate approved its version of the bill (S.2543) introduced by Sen. Edward Kennedy (D-Mass,).For a comparison of both bills, see PCN V, p. 55.56.
CONGRESSIONAL CONFERENCE REPORT 12.
The Conference Committee chaired by Kennedy andRep. William S. Moorhead (D-Pa.) met in late August towork out a compromise bill between the two houses.Reacting to a veto threat from President Ford, the con-ferees modified the bill to meet objections he raised in anAugust 20 letter to Kennedy.
Freedom of Information/Federal Legislative
Rep. John E. Moss (D.Ca.), chairman of the HouseSubcommittee on Information and author of the 1966POI Act, apparently felt the conferees went too far inmeeting Ford's objections. He walked out of the Con-ference meeting saying, "I can't sign this."
The Conference Committee nevertheless voted 4.3 toapprove the report. In early October, the Senate ap-proved the conference report by voice vote with only Sen.Roman Hruska (R.Neb.) dissenting. On October 7, theHouse of Representatives voted nearly unanimously(349.2) also to accept the report and to send it toPresident Ford to be signed into law.
As passed by the Congress, the bill provided for:Discretionary authority in the Civil Service Commis-
sion to impose up to 60 days suspension without payfor federal employees who withhold information"without a reasonable basis in law" after a writtenfinding by the court of circumstances surrounding thewithholding suggesting arbitrary and capricous actionby the official;
In camera court review of documents withheld fromthe public by agencies under any of the nine ex-emptions specified in the original 1966 FOI Act;
Access to police investigatory files only to the extentthat their release would not "interfere with enforce-ment proceedings, deprive a person of a right to a fairtrial or An impattial adjudication, constitute a clearlyunwarranted invasion of privacy, disclose the identityof a confidential police source, or disclose investiga-tive techniques and procedures;"
Attorney's fees and court costs to be awarded tosuccessful plaintiffs only upon a showing of a "generalpublic benefit:"
The promulgation of regulations within govern-ment agencies establishing uniform fee schedules andrecovery of the direct costs of search and duplication;
A 30-day period for defendants to respond to com-plaints filed in court alleging violations of the Act;
An expedited appeals process for all FOI cases;A 10-day administrative time limit within which
agencies must respond to information requests and a20-day time limit within which the agency head musthear an appeal before the aggrieved information seek-er can go to court to contest the agency's informationrefusal;
A time extension beyond the 10 -day response periodwhen the agency can show "exceptional circum-stances" warranting a time extension;
Withholding of information where specificallyauthorized by statute in the interest of "national defense or foreign policy." In addition, courts hearingchallenges to the inclusion of documents in this cate-gory and viewing them in camera were specificallyinstructed to give added weight to an intelligenceagency's determination that the material pertained to
national defense;The release of information "reasonably segregable"
from other records exempted from disclosure;An expanded application of the Act to reach the
Executive Office of the President but not including thePresident's immediate personal staff or other Presi-dential advisory positions;
An index of material available to the public to becompiled and published quarterly.
FORD VETO 13.
On October 17, Ford vetoed the bill. He said thatalthough the conferees had amended several objectionalprovisions of the proposed bill, they had not gone farenough to resolve several "significant problems."
Ford expressed disapproval of the provision allowingfederal court judges to substitute their judgment for thatof intelligence agencies and release information after anin camera review of the documents if they disagreed withthe agency determination that disclosure would endangerthe national security. Instead. Ford suggested a provisionrequiring federal judges to "automatically" uphold asecurity classification if any "reasonable basis" tosupport it could be found. He termed the conferenceprovision a threat to "military or intelligence secrets anddiplomatic relations."
Ford also singled out the ten-day administrative timelimit given agencies to determine whether or not tofurnish requested documents and the twenty-day appealprovision as "simply unrealistic in some cases,"
In addition, Ford took issue with the investigatory filesdisclosure provision. He commented that "millions ofpages of FBI and other investigatory law enforcementfiles would be subject to compulsory disclosure." Fordsaid law enforcement agencies do not have the personnelnecessary to monitor information requests and give outthose documents authorized for release.
FORD OFFERS SUBSTITUTE BILL 14.
While intensive lobbying efforts to override the vetotook form on Capitol Hill, the White House prepared asubstitute Information Bill it would accept. Those sug-gestions, sent to Congress one week after the veto,provided for:
Citizens to pay all costs over $100 incurred by anagency while reviewing documents for release, whetherany documents were found or not;
Agencies to be allowed either 6S working days or3 months to respond to information requests;
Investigatory files to be entirely exempt from dis-closure;
Agencies to seek "unlimited" time extensions fromthe U.S. District Court when responding to infor-mation requests;
Federal judges to release classified documents onlyafter a finding that there was no reasonable basis touphold the agency's security classification.
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Freedom of Information/Federal Legislative15. NNA SPEARHEADS OVEic RIDE EFFORT
Members of the National Newspaper Association(NNA), one of the groups working moFt actively to override the veto, met with admilistration officials in mid.November and learned that the White House was willingto negotiate several of the stostantive provisions of theInformation Act. According to Terry Maguire at NNA,White House officials were adamant, however, with re-gard to the in camera review standards and the costs tobe passed on to information seekers.
Other newspaper and public interest groups workingto override the veto include the American Society ofNewspaper Editors. the Radio Television News DirectorsAssociation, Sigma Delta Chi, Common Cause, CongressWatch, Consumer Federation of America, the U.A.W.and the A.C.L.U.
In a surprise move November 14, the American News.paper Publishers Assocition came out in. support of theFord compromise proposal saying it represented the bestchance for early enactment of an information bill. TheAssociation said if the Ford bill were -meted and ex-perience with it proved unsatisfactory, it would urgefurther amendment.
The House and Senate voted in late November to over-ride the Ford veto. The House vote came Nov. 20 andpassed by a 371.31 marginover 100 votes more thanthe required two-thirds needed to override a Presidentialveto. The following day, the Senate voted 65.27 also tooverride the veto.
The bill becomes effective Feb. 19, 1975.
NATIONAL SECURITY16. HOUSE BILL WOULD LIMIT NATIONAL
SECURITY CLASSIFICATIONSIn December 1973, Rep. William Moorhead (D-Pa.)
introduced a bill (H.R. 12004) to add a new section to theFreedom of Information Act establishing a uniformsystem of "national security" information classification.The bill was referred to the House Foreign Operationsand Government Information Subcommittee of theGovernment Operations Committee where hearingswere held during the summer.
Currently, departmental agencies may classifynational defense information according to their ownregulations and legally withhold classified informationfrom the public under exemption (1) of the Freedom ofInformation Act.
The proposed legislation, titled the "Freedom ofInformation Act Security Classification Amendments of1973," would allow information to be designated as "TopSecret," "Secret" or "Confidential."
"Top Secret" information, under the bill, is defined asmaterial which could cause "exceptionally gravedamage" to the national security. "Secret" informationwould be that material capable of causing "seriousdamage" to the national defense if released to the publicand "Confidential" information that which would cause"damage" to the national defense.
In addition, the bill stipulates that informatio3 maynot be classified in order to "conceal incompetence,
inefficiency, wrongdoing, administrative error or to avoidembarrassment to any individual or agency."
In July, Justice Department officials testified that aprovision in the bill establishing a nine memberClassification Review Commissionsix of whom wouldbe chosen by the President from persons recommendedby Congresswas unconstitutional because itencroached on the Executive's authority tcultimatelydetermine national security classifications.
Subcommittee members are currently redrafting theproposal and hope to hold further hearings later thisyear.
PROPOSED OFFICIAL SECRETS . ACT 17.STALLED IN SENATE
Two bills which reform the Federal Criminal CodeS,1400, introduced by Sen. Roman Hruska (R-Neb.) andsponsored by the Administration, and S. 1, introduced bySen. John McClellan (DArk.)have been combined intoone legislative package by the Senate Subcommittee onCriminal Laws and Procedures.
The combined form of the bills is still before thesubcommitte and, because of its length and complexity,will probably not be acted upon this session. However,according to the subcommittee, McClellan plans tore-introduce the package early next year.
Media groups, including The Reporters Committee,opposed both S. 1400 and S. 1, arguing that the billsthreaten the press' newsgathering capabilities by makingit a crime to publish certain broad categories ofgovernment information, including almost all informa.tion relating to the "national security" along the lines ofthe British Official Secrets Act (see PCN IV, p. 35 andPCN II, pp. 1-3).
CIA PRESS INJUNCTION BILL STALLED (Seethis PCN, p. 12)NATIONAL SECURITY LEAKS BILL PENDING(See this PCN, p. 11)CONGRESSMAN FACES POSSIBLE CENSUREBECAUSE OF NEWSPAPER ARTICLE (See thisPCN, p. 36)
18.
19,
20.
CONGRESS MOVES TO OPEN MORE OF ITS 21,
SESSIONS & AGENCY MEETINGS
The House and Senate are both considering bills whichwould open Congressional committee and federal regu-latory agency hearings to the public (see PCN V, pp.63-64).
Both bills call for public announcement of the date,place and subject of the meeting one week in advance,and provide that complete transcripts of all meetings befurnished. The bills contain exceptions allowing closureof meetings for national security matters, for "personalmatters" and for matters involving "excessive invasions"of individual privacy.
Consideration is not expected during the currentsession on the House bill (H.R. IMO), but hearings on theSenate bill (S. 260) were held before the election recess,
Freedom of Information! Legislative
During those hearings, representatives of theSecurities Exchange Commission, the Civil AeronauticsBoard and the Interstate Commerce Commissiontestified against the bill. They expressed fear of thechilling effect that open meetings would have on agencydeliberations.
22. SENATE BILL TO STOP NEWS MEDIAEXCLUSION FROM U.S. BASES ABROAD
Sen, Mike Mansfield (D-Mont.) has authored anamendment to the Senate Foreign Assistance Act of 1961prohibiting the President from authorizing funds to bespent for foreign assistance if American newsmen areexcluded from foreign military bases constructed withU.S. funds or staffed by American military personnel.The amendment was sparked by the exclusion of report-ers from military bases during the Vietnam war (seePCN p. 11).
The provision, contained in section 17 of the ForeignAssistance Act of 1974 (S. 3394) introduced in the SenateSeptember 3 by Sen. John Sparkman (D-Ala.) would adda new section to the 1961 Act and replace a similarprovision currently in effect under section 29 of the 1973Foreign Assistance Act.
The Sparkman bill was recommitted to the SenateForeign Relations Committee October 2. It is expected tobe reported out of Committee again later this year.
PRIVACY/SECRECY
23. CONGRESS FAVORS OMNIBUS PRIVACY24. SECRECY BILLS GIVING INFORMATION TO25. POLICE BUT NOT MEDIA: HR 1673, S 341826. SENATE CRIMINAL JUSTICE BILL (S 2963)27. JUVENILE JUSTICE BILL (S 821)(See this
, p. 51)
TELEVISING CONGRESS
28. JOINT CONGRESSIONAL COMMITTEEURGES TELEVISED SESSIONS
Live television coverage of the House JudiciaryCommittee debate on impeachment was the first timethat cameras were allows to broadcast a House commit-tee's deliberations, and public acceptance of the experi-ment had apparently persuaded the House to permitcoverage of the floor debate on impeachment (see PCNV, p. 83).
The Joint Committee on Congressional Operationsrecommended in mid-October that Congress installpermanent television broadcasting facilities on the floorof both houses next session and allow commercial and
public networks to cover its activities on a continuingbasis. While the committee urged that camera locationsshould be fixed and unobtrusive and that filming ofreactions to an on-going presentation discouraged, thereport emphasized that "no control over the selection ofmaterials for broadcast use" should be exercised byCongress.
In the report's only dissent, Sen. Jesse Helms (11-14.C.)said the result would be that Congressmen wouldperform for their constituents with oratory rather thanpersuade other members with debate..
Sen. Lee Metcalf (D-Mont.), chairman of the comittee,plans to introduce a resolution encompassing the report'srecommendations when Congress reconvenes in Novo:-hex.
20th CENTURY FUND TASK FORCE REC0111 29.MENDS TELEVISING CONGRESS
The recommendation of the Joint Committee onCongressional Operations to televise Congressional floordebate was echoed by a -Twentieth Century Fund TaskForce in a report issued in late October. The Task Forceproposed that Congress authorize the Corporation forPublic Broadcasting to arrange the physical facilities andto make broadcast coverage available to all networks, IfCongress itself provided the coverage, said the TaskForce's report "Openly Arrived At," the public mightsuspect that "only what the legislature believed to be thebest aspects of the institution were being shown."
AMERICAN BAR ASSOCIATION URGES 30.LIMITATION ON COMMITTEE BROADCASTS
In August, the 1974 Annual Meeting of the AmericanBar Association reaffirmed a 20-year-old resolutionurg ng Congress to provide "that no witness shall becompelled to give testimony in any [committee] hearingfor broadcast by radio or television" unless the witnessgives his written consent. The ABA pointed out thatCongressional investigations often deal with subjects ofcivil or criminal proceedings, and that the effect ofbroadcasted hearings may jeopardize a witness'constitutional rights to a fair trial.
TELEVISED IMPEACHMENT IS 'PUBLIC'SBUSINESS': NEW YORK BAR ASSOCIATION
Prior to former President Nixon's resignation, theSpecial Committee on Communications Law of the NewYork City Bar Association advocated the ulevising of theHouse and Senate impeachment proceedings. If thedebate were broadcast, the report said, the public wouldbe able to satisfy itself that the proceedings wereconducted fairly and that Congress was performing itsduties seriously and intelligently, and, as a result, publicconfidence in Congress would be strengthened. "Mostprofoundly, impeachment and removal is the public'sbusiness and hence the public ought to be as wellinformed as possible."
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31.
Freedom of Information
Federal Executive
32. SENATE PANEL TO INVESTIGATEINFORMATION POLICIES OF REGULATORYAGENCIES; FTC POLICY CRITICIZED
Pursuant to Senate Resolution 253, the SenateSubcommittee on Consumers, chaired by Sen. FrankMoss (D-Utah), is presently conducting a study ofinformation policies of the seven independent federalregulatory agencies, including the Federal TradeCommission, Federal Communications Commission,Federal Power Commission, Federal Maritime Commis-sion, Interstate Commerce Commission, Civil Aero-nautics Board, and Consumer Products Safety Commis-sion,
In a September 3 memo to the SubcoMmittee, StanleyCohen of Advertising Age and John Jenkins of theBureau of National Affairs, journalists who regularlycover Federal Trade Commission news, recommendedthat the FTC: (1) rule upon requests for access under theFreedom of Information Act within ten days; (2) specifywhat requests for documents have been granted andplace those documents in a "public reference file" withinthirty days; and (3) publish a public calendar which listsall meetings between FTC staff and representatives of"outside interests," and open those meetings to thepublic.
33. FTC TO GIVE MORE DISCLOSURE OFCOMMISSION VOTES
Many federal regulatory agencies disclose as a matterof policy not only the votes on final decisions, but voteson intermediate actions as well. Until recently, however,the Federal Trade Commission would reveal only theagency's final votes, even though many cases arc: notresolved until several years after an investigation hasbegun and intermediate votes have been taken.
Responding to criticism by journalists that its decisionshave 'been made more secretively than those of otheragencies, the FTC announced in September that it woulddisclose the intermediate votes of individual commis-soners on a "broader" range of actions such as therejection of a report of compliance and the provisionalacceptance of a consent order.
34. ADVERTISING AGE MAY SUE FTC OVERCLOSED MEETINGS WITH CONSUMERGROUPS
On July 2b, John Revett, a reporter for AdvertisingAge, was denied access to a closed meeting between theFederal Trade Commission and consumer grouprepresentatives (see PCN V, p.b3).
Advertising Age Washington Editor Stanley Cohenprotested to FTC chairman Lewis Engman. Cohen andJohn Jenkins, correspondent for the Bureau of NationalAffairs, met several times with FTC commissioners and
attorneys. As a result of the consultations, the com-missioners are considering proposals for reform of theagency's information policies.
Cohen anticipates that the FTC will open more of itsmeetings to the public and that it will acknowledge that --
the decision to bar Revett was unwarranted. If no suchannouncement is made,Advertising Age will considertaking legal action against the agency.
FTC EXCLUDES SOME MEDIA FROM BRIEF. 35.INGS
The chairman of the Federal Trade Commission,Lewis Engman, recently began regular press briefings onWednesday mornings and closed them except to selectedinvitees, which include reporters for the AssociatedPress, Unitid Press International, Washington Post,Washington Star-News, New York Times, Time,Newsweek, Advertising Age, and the Bureau of NationalAffairs Antitrust and Trade Regulation Report.Publications whose requests to attend have been rebukedinclude Food Chemical News, Broadcasting Magazine,OfConsuming Interest and Business Week.
An FTC spokesman said that Engman invited thecorrespondents on a selective basis so that he "won'thave to worry about the prejudgmental problems bysome reporters that are part of full and formal pressconferences." The spokesman added that Engman chosethose "who were the most knowledgeable about the FTCand who would ask the toughest questions."
On October 22, Sen. Warren Magnuson (DWash,)asked Engman to open the meetings to all members ofthe press. Noting that some publications which areexcluded are in direct competition with publicationswhich are allowed to attend, Magnuson said that "itwould be a shame" if the FTC, which regulatescompetition among industries, "conferred a monopolyon Commission news to the selected publications."Engman has not responded to the letter.
MOST FAVORED MEDIA PROBLEMS 36.
The Engman practice of regularly giving certainpuhlications special benefits and granting them access toinformation which is withheld from others, is traditionalin Washington. The "most favored media" organs haveroutinely accepted their preferential access withoutobjection. Government agencies have therefore operatedmainly on the same assumption.
However, in the last two years, the increase inalternative special publicationson civil rights, theenvironment, consumers, the aged, women, etc.has puta great deal of stress on the most favored media concept,both ethically and legally.
Reporters for the establishment media compete forselected news breaks but are ethically uncomfortablewith an institutionalized system of regular discriminationagainst the less favored media.
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Freedom of Information /Federal Executive
The less favored media reporters are now pressinggovernment agencies for equal treatment, at leastin formal press contacts, as illustrated by the FTCincident described above.
Some other aspects of the problem are:White HouseIn order to cover briefings and press
conferences at the White House, a reporter must obtain a"press pass," of which there are about 1500. In responseto a suit tiled by Thomas Forcade of the Alternative PressSyndicate and Robert Sherrill of The Nation, who weredenied accreditation, the Secret Service argued that ithas full discretion to control access to White Housegrounds (see PCN V, p. 56).
CongressIn order to cover Congress. a newspaperreporter must be a member of the Standing Committeeof Correspondents of the House and Senate PressGalleries and must follow its rules. When Richard Stroutof The Christian Science Monitor refused to agree to oneof those rules (not to accept money from Voice ofAmerica) his membership was terminated (see PCN V, p.64).
Private-Media Groups -=Nor is the practice limitedto government. Godfrey Sperling of The ChristianScience Monitor breakfast clubone of several inWashingtonhas held over 500 meetings for newsmenand has featured such public figures as Sen. HenryJackson, Henry Kissinger, Arthur Burns, George Bush,Eliot Richardson and Pat Buchanan. The club has a coreof about 35 of the "most favored media. "It excludes theAssociated Press. United Press International, Reutersand the three broadcast networks on the grounds that theinstant nationwide coverage of the wires and networkswould scoop the other reporters.
While Sperling said he never turns down a requestfrom a reporter to attend, members of the club say thatonly a limited number of selected publications arenotified when a breakfast is arranged. The group isconscious of the restrictions this represents and hassought to address them. At the same time, the groupimplicitly understands that the number of reporters andthe type of publications which are invited according toSperling, "are subject to the prevailing mores in thistown."
37. RECORDS OF FED. ENERGY AGENCYMEETINGS TO BE MADE PUBLIC (See thisPCN, p. 36)
38. HEW ADOPTS EXPEDITED FOI POLICY
In August, the Department of Health, Education andWelfare issued new departmental freedom of informa-tion regulations which allow more public access toinformation and which expedite the handling of requestsfor information. It was the first revision of theregulations since they were instituted in 1967.
20
The new regulations require that an initial request forinformation be responded to within 10 working days andthat an appeal from a denial of access be acted on within20 working days from when the request for review wasfiled. These provisions are identical to those contained inthe amendments to the Freedom of Information Act thatPresident Ford recently vetoed (see this PCN, p. 15).
The new regulations specify particular types of recordswhich will he made available to the public. These includeofficial correspondences between HEW officials andnon-agency individuals or groups and records relating toresearch and development projects.
Records specifically made unavailable under the newregulations include lima- and inter-agency memosreflecting the views of the writer or other people, and allinvestigatory tiles compiled for law. enforcement casesthat are still open, It' a case is closed, the investigatoryfiles will remain unavailable if they reveal the names ofinformants, release trade secrets or reveal policyrecommendations.
TVA CHARGING MEDIA FOR SUPPLYINGAGENCY INFORMATION ON COALRESERVES
The Tennessee Valley Authority (TVA) is a
congressionally chartered public corporation subject tothe federal Freedom of Information Art. In August, areporter for the Whitesburg (Ky.) Mountain Eagle askedTVA for documents relating to coal reserves TVAexpected to purchase. TVA billed the paper for$108.
A spokesman for TVA explained the billing to theEagle noting that it took a the clerk 16 hours at an hourlyrate of $6.75 to locate the requested information. Thespokesman also told an Eagle reporter that this was thefirst time a newspaper has been charged for suchinformation.
39.
NOTE: The Freedom of Information Act does notmake provision for search fees for informatiorPolthoughreasonable copying charges may be assessed.
COURT OPENS SECRET ADVISORY BOARD 40.MEETINGS
The Federal Advisory Committee Act, 5 U.S.C. App.I § 1 et seq. requires that there be full public access to alladvisory committee meetings, that there be sufficientpublic notice of such meetings and that full records ofthe meetings be kept. Exemption 5 of the Freedom ofInformation Act, 5 U,S.C, 522, exempts intraofficedocuments from the general disclosure provisions of thatAct,
In August, the Commerce Department held two closedsessions of its Travel Advisory Board, a committee madeup of nongovernment employees. The Departmentclaimed that since intraoffice documents were discussed
24
Freedom of Information/Federal Executive
at the meetings, Exemption S allowed it to hold secretsessions.
Later in August, the Aviation Consumer ActionProject filed suit against the Commerce Departmentbecause of the secret sessions.
On September 6. U.S. District Court Judge WilliamBryant ruled that the Department had violated both theFreedom of Information Act and the Federal AdvisoryCommittee Act in holding the secret sessions. The Courtheld that Exemption 5 cannot be invoked as to"documents which have been, ..disclosed by the agencyto members of an advisory committee who are notfull-time employees. . of the Federal Government." TheCourt enjoined the Department from excluding thepublic from advisory committees.
41. AMERICAN LIBRARIES ASSOCIATIONWRITER FIRED FOR SEEKING FOI INFOR-MATION_(See this PCN, p. 70)
42. US COURT SAYS OFFICIAL NAVY AUDITSSTAY SECRET UNDER FOI ACT
In 1973, the Department of the Navy compiled tworeports concerning alleged over-expenditures from 1969to 1972. One report was prepared by the InspectorGeneral of the Navy, and it contained recommendationsof disciplinary action because of the over-expenditures.The other report was an audit prepared by the AuditorGeneral.
As part of an investigation into Naval over-expend-itures, reporters Mark McIntyre and Brit Hume (bothformer Jack Anderson associates) requested copies of theNavy reports on February 12, 1973.
On March 16, 1973, the Navy denied the request, andon June 21, 1973, the reporters filed a Freedom ofInformation Act suit in federal court to requiredisclosure of the reports. The suit was handled by theFOI Clearinghouse.
On October 3, 1974, District Court Judge ThomasFlannery held that the Freedom of Information Act doesnot require the Navy to produce the reports. Flannerysaid that the Inspector General's report was withinExemption 7 of the Act ("investigatory files compiled forlaw enforcement purposes") because it recommendsdisciplinary action. lie also said that the AuditorGeneral's report was within Exemption 5 ("inter-agencyor antra- agency memorandums") since it reflects theopinions of the auditor concerning internal Navyoperations.
An appeal is uncertain.
21
REPORTER SUES AMTRAK FOR DATA 43.
In March 1973, Amtrak's board of directors refused tosupply minutes of its meeting to Washington Star-Newsreporter Stephen M. Aug (see PCN V p. 62). Amtrak, acongressionally-charted corporation, is subject to theFreedom of Information Act.
In July 1974, Aug tiled a suit in federal court claimingthat he was entitled to the documents under the Act.
In its answer, Amtrak claimed that it was entitled towithhold the minutes under Exemption 5 of the Act,allowing non-disclosure of intra-agency memorandums.
It also stated that Aug's request was overly broad anddid not present a request for identifiable records asrequired by the Act.
PENTAGON RELEASES MY-LAI MASSACRE 44.STUDY SHOWING COVER-Uru
In 1969, the Secretary of the Army ordered a detailedinvestigation into the adequacy of the preliminary Armyreports on the My Lai massacre.
The result of this investigation was the four volumePeer Commission Report, which was submitted to thePentagon in March 1970.
In 1972, Congressman Les Aspin (D-Wisc.) requestedthat the Defense Department make the Report public.Aspin filed a Freedom of Information Act suit in federalcourt when the Defense Department refused his request.
In 1972, District Court Judge John Pratt dismissedAspin's suit, holding that Exemption 7 of the Freedom ofInformation Act ("investigatory files compiled for lawenforcement purposes") allowed the Defense Depart-ment to keep the Report secret.
This decision was affirmed by the United StatesCircuit Court of Appeals in 1973.
On November 13, 1974, the Defense Departmentfinally opened two volumes of the Report to the public. APentagon spokesman said the two volumes still beingwithheld contained raw investigatory material that mightharm individuals mentioned in them.
One of the volumes that was released contains theanalyses and conclusions of the Peer Commission; theother contains documentary evidence. The reportrevealed that there had been a massive attempt by theArmy to cover up the massacre.
NETWORKS USE FOI FOR NIXON PAPERS 45.
(See this PCN, p. 66)
25
Freedom of Information/Federal Executive
_46, SUPREME COURT FREEDOM OF INFORMATION CASES
NOTE: The following four Freedom of Information Act(FOIA) cases recently came before the Supreme Court.Although they were brought by non-media litigants, theyare included in this Newsletter because there is nodistinction under the FOIA between requests fordisclosure made by consumer organizations, forexample, or by the news media. The FOIA requiresfederal agencies to disclose documents at the request of"any person," regardless of that person's purpose inseeking the information.
The four cases discussed below involve the scope of twoof the nine exemptions to the FOIA disclosurerequirement.
Left standing because of the Supreme Court's decisionagainst review were two appellate court precedentsbroadly interpreting Exemption 7 of the Act ("investiga-tory files compiled for law enforcement purposes") infavor of the government.
Both cases which the Supreme Court agreed to reviewdeal with the scope of Exemption 5 ("inter-agency orintra-agency" memoranda) and were decided against thegovernment by the U.S. Court of Appeals.
47. US SUPREME COURT TO REVIEW APPEALSCOURT FOIA RULING MAKING PUBLICNLRB MEMOS
Sears, Roebuck & Co., involved in a dispute with aunion local, complained in April 1971 to the NationalLabor Relations Board (NLRB). After the NLRB refusedto issue an unfair labor practice complaint against theunion, Sears unsuccessfully sought to obtain from theboard copies of NLRB "advice memoranda" issued in itsown case and similar cases. "Advice memoranda" aresent by the NLRB's Washington office to RegionalDirectors, instructing them on the handling of labor
Sears then filed suit under the Freedom of LformationAct (FOIA), arguing the memoranda should be disclosedbecause they set out what amounts to rules of labor lawto be applied in a particular case and future cases. Thegovernment relied on Exemption 5 ("inter-agency andintro- agency memorandums") in resisting disclosure.
The court ordered the NLRB to hand over thedocuments, finding that the .memoranda should bedisclosed because they contained not mere opinions ofagency officials. but rather "instructions mandatory insubstance if not in form." The court also quoted aprovision of the FOIA which authorizes disclosure of"instructions to staff that affect a member of thepublic."
The decision was recently affirmed by the U.S. Courtof Appeals, for the District of Columbia Circuit on thebasis of its own decision in the Grumman case (see thisPcN, p. 23).
The NLRB appealed to the Supreme Court, whichagreed on October 15 to review the case. The court alsoagreed to review Grumman. The two cases raise similarimportant issues regarding the scope of public access tointernal government memoranda which form the basisfor an agency's actions and decisions.
US APPEALS COURT RULES THAT FOIADOES NOT COVER AUTO SAFETY AGENCYPROBES; US SUPREME COURT DECLINESREVIEW
Ralph Nader and Clarence Ditlow, an environmentalattorney with Nader's Public Interest Research Group,tiled suit under the Freedom of Information Act (FOIA)after they were refused access to correspondence betweenthe National Highway Traffic Safety Administration(NliTSA) and automobile manufacturers about pendinginvestigations of safety defects hi new automobiles.
Although such orrespondence is routinely madepublic at the close of the NHTSA's preliminary inquiry,Nader and Ditlow argued that earlier disclosure wasnecessary to allow the public to comment or submitevidence at the critical early stages of an auto safetyinvestigation.
The government argued that the correspondence beingsought was exempt from disclosure under Exemption 7of the FOIA ("investigatory files compiled for lawenforcement purposes"). Nader and Ditlow answeredthat an investigatory exemption only applies if there is anenforcement proceeding, and no such proceeding hadbeen initiated in this case.
A federal district court ordered disclosure, on theground that although the files sought could conceivablylead to an enforcement proceeding, their disclosurewould not cause serious harm to any law enforcementaim.
The U.S. Court of Appeals for the District ofColumbia reversed, holding that it was error to haverequired a showing of harm. The court said that, asenacted by Congress, Exemption 7 applied whereveragency documents have a law enforcement purpose, andto add any further requirements would be to"second-guess the Congress."
Nader and Ditlow appealed to the Supreme Court,seeking reversal of the Court of Appeals opinion becauseit appeared to authorize blanket agency claims that anyinvestigative or research related information can be keptsecret under Exemption 7.
In October, the Supreme Court let the Court ofAppeals opinion stand.
SUPREME COURT LETS STAND RULING 49,
THAT NLRB FILES ARE SECRE: UNDER POIACT
A South Carolina textile manufacturer was refusedaccess by the National Labor Relations Board (NLRB) tounion affidavits and other documents collected by the
48.
22
28
Freedom of Information/Federal Executive
Board in the course of an investigation into irregularitiesin two union representation elections conducted in 1972at the company.
In January 1973, the company filed suit under theFreedom of Information Act (FOR). Denying that thedocuments being sought were subject to disclosure, theNLRB cited Exemption 7 of the FOIA ("investigatoryfiles compiled for law enforcement purposes").
In January 1974, the U.S. Court of Appeals for theFourth Circuit upheld the NLRB.The court gave a broadinterpretation to Exemption 7, holding that, "Thoughpractices vary, if aimed at enforcement of the NLRA, wethink they are for law enforcement purposes.' "
The court also said that if a company is known to haveaccess to union affidavits taken in the course of an NLRBinvestigation, union members may be reluctant to speakfreely.
The company appealed to the Supreme Court, arguingthat the information it needed to test the validity of aunion representation election had been "cloaked insecrecy in contravention of a statute designed andintended to provide for freedom of information," andthat the court's interpretation of Exemption 7 "wouldvirtually render any administrative agency immune to doas it wished in secrecy."
In October, however, the Supreme Court deniedreview, with the effect that the Fourth Circuit opinionwas left standing.
so. SUPREME COURT TO REVIEW APPEALSCOURT RULING THAT RENEGOTIATIONBOARD INFORMATION MUST BE MADEPUBLIC
In April 1968. the federal Renegotiation Boardordered Grumman Aircraft Engineering Corp., a
government contracter, to repay the government $7.5million in excessive profits for 1965. Grumman asked theboard for access to documents explaining decisions madein 14 similar cases by its local units, the Regional Boards.The Board refused, citing Exemption 5 ("inter-agencyand intra-agency memorandums") of the Freedom ofInformation Act (FOIA).
Grumman filed suit, arguing that because theRegional Boards have decision-making power, theirdeterminations constitute "Finarapinions" subject todisclosure under the FOIA. The Renegotiation Boarddenied the documents requested were final opinions, andargued that disclosure would impair the decisionalprocess of a government agency.
A federal court initially refused disclosure, but theU.S. Court of Appeals for the District of Columbia Circult reversed and sent the case back for further proceed-ings. The District Court ordered disclosure, and in July1973, the appeals court hearing the case a second timeaffirmed.
23
The court held that Exemption 5 applied to agency"documents composed exclusively for purposes ofassisting policy formulation" but not to "those whichserve to reflect policy already made and announced,"Although conceding it may sometimes be difficult todraw this line, the court ruled that the documents soughtby Grumman were clearly documents justifying finalagency decisions, and hence subject to disclosure.
On October 15, the Supreme Court agreed to reviewthe case, together with another case also involving thescope of the "inter-agency and intraagency memo-randa" exemption to the FOIA (See Sears. Roebuckcase, this PCN. p. 22).
JUSTICE STEWART SAYS PRESS HAS NOCONSTITUTIONAL RIGHTS TO GOVERN.MENT INFORMATION: PRAISES WATER.GATE PROBE
On November 2, United States Supreme Court JusticePotter Stewart gave an address entitled "Or of the Press"at Yale University.
Stewart said that the press was performing its properrole as an active institution ifi relation to the Watergatescandals.
Stewart also said that while the "press may publishwhat it knows," even if it involves the publication ofstolen government documents, "there is no constitutionalright to have access to . . . government information."
Si
JUSTICE DOUGLAS SUGGESTS GOVERN. 52.
MENT SUBSIDIES FOR NEWSPAPERS
On November 6, United States Supreme Court JusticeWilliam 0. Douglas gave a speech at Fairleigh DickinsonUniversity in Teaneck, New Jersey.
Douglas spoke about First Amendment powers thatCongress has "to protect the press, )and) encourage pub-lications."
Douglas advocated granting a postal rate subsidy to allenvironmental publications, "no matter the viewpointbeing advanced," and to "country weeklies and smallcommunity newspapers."
FEDERAL INVESTIGATIONS TO TRACE 53.
NEWSLEAKS AT PENTAGON, STATEDEPARTMENT AND FBI (see this PCN, p. 37)
27
Freedom of In formation/Federal Executive
PUBLIC ACCESS RESTRICTIONS ON FED.ERAL CRIME INFO
54, LEAA prior arrest records (See this PCN, p. 53)55, FBI has new procedures (See this PCN, p. 52)
i 3,000 May Day arrest records (See this PCN, p. 53)1..xleral lawsuit to expunge old FBI info (See this
PCN, p. 53)58. U.S. Court opposes FDA media info (See this PCN,
p. 45)
59, U.S. APPEALS COURT RULES INACCURATEFBI RECORDS MAY BE LIBELOUS &VIOLATE PRIVACY RIGHTS
The U.S. Court of Appeals for the District ofColumbia Circuit recently decided an F.B.I. records case,the latest in a recent line of cases lending support to theidea that arrest and conviction records are matters of'interest only to the particular law enforcement agenciesand the particular individuals involved, and the relatedidea that a prior criminal record should be keptconfidential even when it might be highly relevant andnewsworthy in the judgment of a reporter.
On October 22, the court ruled by a vote of 2-to-1 thata lower court erred in refusing to hear a Texas man's suitfor expungement of alleged inaccuracies from his F.B.I.file or an injunction prohibiting the F.B.I. fromdisseminating the uncorrected
Writing for the majority, Chief Judge David L.Bazelon ruled the F.B.I. has a "duty to take reasonablemeasures to safeguard the accuracy of information in itscriminal tiles which is subject to dissemination."
Judge Bazelon found this duty implied in the federalstatute authorizing the Attorney General to maintaincriminal records (28 U.S.C. section 534) and in the rightsof due process and privacy.
He also cited the common law of libel. The judgecontended that if the F.B.I. has the right to disseminateinaccurate personal data without making any attempt toprevent inaccuracy, the agency would in effect have theright to libel the individuals concerned.
Judge Bazelon sent the case back to a lower court for ahearing to define exactly how the F.B.I. should go aboutsafeguarding the accuracy of its files.
A dissenting judge accused the majority of orderingjudicial oversight on the operations of the F.B.I., afunction which he said belonged to Congress.
24
State
ALABAMA COURT OPENS SEALED ARREST 60.FILES (See this PCN, p. 54)
WASH. D.C. COURT SAYS PRIVACY VIO. 61.
LATED BY PUBLICATION OF RAPE VICTIMNAME (See this PCN, p. 53)
FLA. FOI LAW COVERS UNIVERSITY STUDIES 62.
The Florida attorney general ruled that the state'spublic records law does not exempt a "work product" or"working paper" from its inspection provision.
Atty. Gen. Robert L. Shevin made the ruling inresponse to an inquiry by a state legislator who askedwhether. a University of South Florida official couldrefuse to allow inspection of a student government studymade by students but in the school administrator'spossession. The official had claimed inspection was notrequired by virtue of a work product or paper exemption.
But the attorney general cited a 1973 state courtdecision which rejected the exception and said "the onlyrelevant concern in deciding whether a document is a'public record' is whether" it is in the "legal possession ofa public official." The state law provides for theinspection of public records.
FLORIDA COURT SAYS FOI LAW COVERS 63.
CITIZEN ADVISORY GROUP MEETINGS
The Palm Beach Town Council met in closed session toappoint a citizens' advisory zoning committee. Thecommittee subsequently met with professional planningconsultants in meetings which were closed to the publicand at which no minutes were taken. The committeemade zoning recommendations to the Town Council.
The town subsequently adopted a comprehensivezoning plan following public meetings before *the counciland the town zoning commission. The zoning plan wasattacked in court by citizens who claimed that itsadoption was invalid because of the non-public activitiesof the citizen's advisory group in violation of the state's"sunshine" law, which requires all state and local boardsand commissions to meet in public.
A District Court of Appeals invalidated the zoningordinance, Last May, the Supreme Court of Floridaupheld the decision in an opinion which observed that
28
Freedom of Information/State
"the taxpayer deserves an opportunity to express hisviews and have them considered in the decision-makingprocess." The news media, said the court, have madecitizens aware of governmental problems by theirconsul nt reporting of community affairs,
ofThis holding appears to be a major extension
of the Florida Sunshine Law preventing state agenciesfi.om avoiding coverage under the state Sunshine Law bydelegating their function to private bodies.
64. GEORGIA LAW BARS RAPE VICTIM NAME(See this PCN, p. 53)
65. IDAHO STATE AGENCY MUST OPEN IN.VESTMENT FUND INFORMATION TO PRESS
The Idaho Endowment Fund Investment Board is astate agency which manages and invests state funds. TheBoard often invests in bonds or notes guaranteed by thefederal government.
Early this year, the Boise Idaho Statesman began aninvestigation of the investment procedures followed bythe Board. As part of this investigation, reporterKenneth Matthews requested access to the Board's filesconcerning certain federally guaranteed BusinessAssociation loans.
Matthews made his request under the Idaho freedomof information law, which states that "the public recordsand other matters in the office of any officer are...open tothe inspection of any citizens."
When the Board denied the request, the Statesmantiled suit in Idaho state court,
In arguing against disclosure, the Board claimed thatthe data requested by Matthews were not public recordsbecause they were preliminary reports irrelevant to theBoard's public function.
On September 16, Judge J. Ray Durtschi ordered theBoard to open its records relating to Small BusinessAssociation loans made with state funds. The judge heldthat these documents were public records and weretherefore within the scopeof the freedom of irformationlaw.
66. INDIANA CORONER SEALS DEATHCERTIFICATES
The Evansville- Vanderburgh County Health Depart-ment filed suit in August, 1973, against the Evansville(Ind.) Press seeking a declaratory judgment on theavailability of death records to the public, Thedepartment had previously refused to allow EvansvillePress reporter L.D. Suits to see the death certificates orpurchase copies of them.
On July 22, 1974, a state Circuit Court Judge declaredthe records open to the public because of the IndianaState Anti-Secrecy Act. Under that act, all stategovernment activities and documents are presumed to bepublic record information unless specifically closed bystatute. The judge also said that the certificates wereavailable based on a 1949 state statute expressly openingdeath records to the public.
The Department of Health has announced itsintention to appeal the decision and has continued todeny the press access to the death certificates.
MASS SEALS EX.OFFENDER CRIMINALRECORDS (See this PCN, p. 52)
NY BILL TO PROTECT REPORTERS DIES IN 68,
COMMITTEE
67.
In early January, Assemblyman Joseph Margiotta(R-Uniondale) and Sen. John Dunne (R- Garden City)introduced bills in the New York State Legislature whichwould have provided for the prosecution of anyone who"intentionally or unreasonably obstructs or impairs theperformance" of a news reporter or photographer (seePCN IV, p. 48).
Assembly Bill 8184 and Senate Bill 7016, which wereassigned to the Codes Committees of the respectivehouses, died when the legislature adjourned, and it is
not known if either will be re-introduced when the newsession convenes in January.
LONG ISLAND PAPER LOSES CITY BUSINESS 69.
AFTER CRITICIZING MAYOR
For more than fifty years, the Garden City (KY .).Newshas been the official newspaper of that Long Island townand, as such, published all legal and public noticeadvertising. On July 17, the paper criticized the mayorfor his handling of police contract negotiations andsuggested that he resign. The next day, the village boardvoted to withdraw the official newspaper designationfrom the News and to award it to the Garden CityLeader.
Criticizing the political pressure exerted by the villageboard, the Nassau County Press Association announcedthat it would investigate the incident, Before theinvestigation could get underway, however, Jeffrey King,owner of the News, sold the paper to the Litmor groupbased in Hicksville, N.Y. The new manager of the News,Robert Morgan, was also the chairman of the NassauCounty Press Association.
The press group then suspended its plans for aninvestigation, because, according to Morgan, "we felt itmight be considered to be a conflict of interest."
Freedom of Information /State
70. UTICA MAYOR LOSES PRESS HARASSMENTSUIT
The Gannett newspapers filed suit in federal courtagainst Utica Mayor Edward Hanna and obtained acourt order forbidding the mayor to discriminate againstthe reporters of two Utica newspapers (see PCN V, p.A day later. Hanna issued a set of guidelines requiringreporters of all news media to write and sign all questionsasked of city officials. The mayor also; (1) sued theObserver-Dispatch and Daily Press for $1 million inpunitive damages for what Hanna termed pressharrassment; and (2) requested that the Federal Courtbar Observer-Dispatch reporter Denney Clements fromCity Hall. The newspapers refused to obey the guidelinesand subsequently asked the court to find Hanna incontempt of the July 1 order.
In early August, the court struck down the mayor'sguidelines and dismissed both the harassment suit andthe request to deny Clements access to City Hall.However, the court declined to find Hanna in contempt.
71. OREGON POLICE HAVE DISCRETION TOOPEN OR CLOSE INVESTIGATION FILES
The Oregon open records act requires that the recordof an arrest and the report of a crime shall be open to thepublic, but that criminal investigatory files shall not bedisclosed "unless the public interest requires disclosurein the particular instance."
On September 4, Oregon Attorney General LeeJohnson issued an opinion that it was up to the policeagencies to decide when the public interest requireddisclosure of investigatory tiles.
He also said that each request for disclosure of aninvestigatory file would be "judged on the individualfacts, considering the nature of the crime, the interest ofthe public and the efficiency of the police agency and theinterest of the inquirer."
Johnson stated that in a particular case, the "publicinterest" in freedom of the press might require thedisclosure of an investigatory file to a member of thepress, though not to a member of the general public.
72. ACLU CHALLENGES SECRET POLICEMEETING
Last April, a committee of the Portland, Oregon policebureau began an inquiry into an incident involving theshooting of an innocent man by a policeman. Thecommittee met in secret executive session, and excludedan Oregon Journal reporter (see PCN V, p. 69).
The Oregon open meeting law states that newspersons"shall be allowed to attend executive sessions."
26
On June 3, New Oregon Publishers, Inc. tiled suitchallenging the exclusion, claiming that it violated theopen meetings statute.
In seeking to dismiss the suit, the defendants (themayor, police chief, and committee members) assertedthat the executive session was justified because the groupwas reviewing, criminal investigatory information andrecords.
In response, the publishers deny any intention ofchallenging the right to hold executive sessions. Theyargue, however, that the open meetings law permitsnewspeople to attend such sessions.
PENNSYLVANIA ENACTS NEW SUNSHINE 73.LAWS; WEAKENING AMENDMENT INTRO.DUCED
On July 19, the Pennsylvania legislature enacted a new"sunshine" law, which requires open meetings for allstate and local governing bodies, including schoolboards, the state legislature and the governor's cabinet(see PCN V, p. 67). The law also requires that notice ofthese open meetings be published in the state'snewspapers.
In late October, state Senate Majority Leader ThomasF. Lamb introduced legislation that would exemptmeetings of the state General Assembly from the noticerequirements. The bill is presently in committee.
SUNSHINE LAWS --A BRIEF OVERVIEW 74.
Open meetings ("Sunshine") laws are now in effect in48 states. Only Mississippi and West Virginia have nosunshine provisions on the books. Most of the laws,however, contain limitations, such as exceptions forexecutive sessions and discussions of personnelproblems.
The Tennessee statute (chapter no. 442, Public Acts of1974) is considered to be the toughest sunshine law. Itrequires that all meetings of any governing body to beopen to the public. There is no exception for executivesessions. The Tennessee law also provides that notice ofall meetings must be given and that full minutes must bekept. The law gives the courts power to issue injunctionsand impose any other equitable remedy to "enforce thepurpose of the Act,"
Chattanooga Times 7S.
Recent cases arising under the Tennessee sunshine lawinclude the following;
In August, reporters for the Chattanooga Times andthe Oak Ridger invoked the Tennessee Sunshine Lawwhen they were denied admission to meetings of twodifferent school boards.
In early September, the newspapers filed separate suitsagainst the school boards, asking for injunctive relief andany other penalties necessary to enforce the letter andspirit of the law. The suits are still pending.
30
76.
Freedom of Information/State
WAGGRalph Dawson, news director of Franklin (Tenn.)
radio station WAGG, sued the Wi 'Ramon CountySchool Board, alleging that the board had violated thestate's new "Sunshine Law". The suit charges that theboard: (1) failed to give public notice of two meetingsheld in July between the school board and theWilliamson County Educational Association; (2) failed tokeep minutes of the meetings; and (3) closed themeetings to the public. The lawsuit asks the court to voidany decisions on teachers' pay raises which may havebeen made during the meetings.
77. HOUSTON POLICE DENY PRESS ACCESSRECORDS (See this PCN, p. 54)
Government Harrassment
78. FBI MAKES "OFFICIAL" VISIT TO PROTESTCATHOLIC PRIEST'S COLUMN
In a column appearing in The Western Catholic onJune 23, Rev. Andrew Greeley criticized the FBI for itshandling of the Symbionese Liberation Army/PatriciaHearst case which climaxed in a Los Angeles shoot-out.The column was also distributed to newspapers acrossthe country by the Universal Press Syndicate.
FBI Director Clarence Kelley responded to the columnwith a letter which was printed by The Western Catholicin its August 4 issue. Nearly a month later, two FBIagents made an "official" visit to hand deliver a copy ofthe letter to the office of the Universal Press Syndicate.No threats were made either to Greeley or to the agency.The columnist said he feels that the visit had a "clearmessage" and had an intimidating effect.
NOTE: For stories of similar FBI incidents, see PCNIV, p. 47 and PCN V, p.40.
79. US SUPREME COURT POLICEMAN POSES ASNEWSMAN
When a pro-abortion group sought to hold a rally onthe steps of the Supreme Court last year, it learned thiitthe policy of the Supreme Court, which has jurisdictidnover its own grounds, forbids demonstrations in oraround the building. The rally was then moved across thestreet to the grounds of the Capitol.
During the demonstration, Supreme Court Police Lt.James Zagami dressed in plainclothes and, posing as anews reporter, attended the rally with a tape recorder.
Barrett McGurn, the Supreme Court's press officer,confirmed the incident but maintained Zagami actedwithout the knowledge of court officials. However,according to New Times reporter Nina Totenberg, whobroke the story, Zagami was acting with the approval ofhis supervisors and was supplied with expensive cameraequipment. Since the story was published, Totenbergsaid, Zagami has been "punished by being rotated tonight duty."
WASH. STARNEWS CAMERAMAN ACQUIT. 80,
TED OF DISORDERLY CONDUCT CHARGES
Washington Star-News photographer Geoffrey Gilbertwas charged with disorderly conduct in June following ascuffle with police as he attempted to photograph atraffic arrest outside the Star-News building (see PCN V,p. 74 Gilbert claimed that he was hit in the chest with anightstick and wrestled to the ground.
Star-Nes managing editor Charles Seib said thatpolice deliberately exposed two rolls of film confiscatedfrom Gilbert's camera and thereby destroyed pictures ofthe arrest and other news photos.
A D.C. Superior Court judge acquitted Gilbert ofdisorderly conduct charges in September after conclud-ing that Gilbert and a police officer "inadvertentlycollided." In an oral opinion delivered from the bench,the judge did not draw any conclusions about theexposure of the film and cleared the police of any chargesof police brutality.
LOUISVILLE REPORTERS ARRESTED FOREAVESDROPPING ON POLICE SESSION
Last May, two Louisville reporters, Howard Finemanof the Courier-Journal and Jerry Hicks of the Times, werearrested and charged with disorderly conduct becausethey listened outside the door of a closed session of thelocal Fraternal Order of Police. The newsmen spent 21/2hours in the city police lock-up before the Courier.Journal and Times Company posted bail.
The participants in the police meeting, including thepolice chief and legal counsel, also seized the reporters'notes and a tape recorder. The Fraternal Order of Policelater asked the U.S. Attorney to convene a federal grandjury to investigate a possible violation of a federalanti-bugging statute. 'The machine had not been turnedon during the meeting and there was nothing on the tape.The grand jury did not indict the newsmen.
In early October, Judge Benjamin Shobe ordered aLouisville police court jury to acquit Fineman and Hickson the disorderly conduct charge. The judge ruled thatthe prosecution had not demonstrated that the reportershad disturbed the meeting.
27
at
81.
Freedom of Information/Government Harrassment
x2. ATLANTA POLICE DENY PRESS PASSES TOTWO ALTERNATIVE NEWSPAPERS
Atlanta police chief John Inman refused in August toissue city press identification passes to news staffmembers of the Atlanta Voice and the Great SpeckledBird. According to the Voice, Inman claimed theissuance of press passes was "privileged." Voice staffmember Gregg Mathis, however, attributes the denial ofpasses to "critical investigative reports" of the Atlantapolice department by both newspapers.
The Voice is the state's largest black newspaper. TheBird is one of the oldest and best known undergroundpapers.
Despite Inan's refusal to authorize the passes,Atlanta Mayor Maynard Jackson issued both paperspress identification signed by Inman and sent to theMayor for distribution.
NOTE: See PCN V. p. 56 for a suit by two newsmenseeking White House accreditation. Also see PCN V, p..43 regarding a police spy plant on the Voice staff.
83. INDIANAPOLIS REPORTERS INDICTEDAFTER ALLEGING POLICE CORRUPTIONAND PROSECUTORIAL MISBEHAVIOR
Since February, Richard E. Cady and Williams E.Anderson, reporters for the Indianapolis Star, have beeninvestigating corruption in the Indianapolis policedepartment and the Marion County prosecutor's office.
The investigation initially focused on police graft andprotection of prostitution, narcotics, bootlegging andgambling. These allegations were based largely oninformation allegedly supplied by 28 confidential policedepartment sources.
When only five policemen were indicted for illegalactivities, the reporters began to. look into the wayCounty Prosecutor Noble Pearcy was presenting the casesto the three grand juries that were investigating policecorruption. After interviewing 78 former grand jurors,the reporters wrote that it appeared that Pearcy hadmanipulated the grand jury deliberations.
According to the Star, Cady and Anderson werecontacted in March by Larry Keen, a police informerwhom the reporters considered unreliable, Keen told thereporters that at a particular time and place he was going
Because of this incident a Marion County grand juryon September 12 handed down an indictment chargingCady and Anderson with conspiracy to bribe a policeofficer. Neither the informer nor the police officer wereindicted,
to pay off a police officer. The reporters, "as a matter ofcuriosity," went to the scene and saw Keen pass anenvelope to a police lieutenant.
The indictment has been widely criticized by pressgroups, lawyers and politicians. Robert D. Early, themanaging editor of the Indianapolis Star. called theindictment "a carefully orchestrated frame-up," and thepresident of the Indianapolis Bar Association said thatthe indictment amounted to a "cynicah disregard" offreedom cif the press. Two independent press groups arelaunching investigations into .he charges against thereporters.
Senator Birch Bayh (D- Ind.) and The ReportersCommittee for Freedom qf the Press have both sentletters to Attorney General William Saxbe, urging thatthe Justice Department investigate whether Cady's andAnderson's civil rights had been violated by theindictment. In its letter The Reporters Comniittee statedthat the indictment was a corruption of "the statecriminal justice system in an attempt to intimidate thesereporters...froni exercising their ...civil rights toinvestigate and write about governmental affairs."
As yet, there has been no response to these letters bythe Justice Department.
WHITESBURG MOUNTAIN EAGLE BURNED 84.DOWN; POLICEMAN ARRESTED; ARSONSUSPECTED
On August 1, the Whitesburg (Ky.) Mountain Eagleburned to ths.: ground. Tom Gish, editor of the Eagle, wasunsuccessful at the time in convincing state police toinvestigate the cause of the fire despite an additionalrequest made by the Whitesburg Fire Chief. The paperhas developed a national reputation for its investigationsof strip mining and mine safety hazards which has madeit unpopular with local mine owners and officials,
Two weeks later, a cleanup crew discovered kerosene-soaked envelopes inside Gish's office. The ReportersCommittee, by counsel, asked the Justice Department tostart an investigation. The state then started its ownten-week investigation which appeared to center on Gishand his immediate family. At one point investigatorsasked them to take lie detector tests.
The tests became unnecessary when investigatorshanded down warrants October 18 charging aWhitesburg policeman and three others with the Eaglearson.
2832
Freedom of Information/Government Harrassment
Eagle Still ScreamsThe tire caused $30,000 in damage by completely
destroying the newspaper office and its equipment. TheEagle has continued to meet its weekly deadline andserve its 5,700 readers as usual. Gish, typing copy athome and using improvised equipment to put the paperout while awaiting delivery of new production machinery,has continued to publish his critical assaults on theKentucky strip mining interests, coal operators, truckers,police and local government officials.
The effects of the fire have caused at least oneimportant change in the newspaper. The twowordslogan formerly appearing on the Eagle's mastheadproclaiming that "IT SCREAMS" has been changed toread: "IT STILL SCREAMS."
(See this PCN, p. 20 for a story about a $100 documentfee assessed to the Eagle by the T.V.A.)
III CONFIDENTIALITY OF NEWS MEDIA SOURCES
State Executive
1. CALIF. POLICE USE NO.NOTICE WARRANTSTO SEARCH MEDIA FILES AND TO AVOIDSHIELD LAW PROTECTION
In 1972, in a case involving the Stanford (University!Daily, a federal judge in California ruled that no-noticepolice search-warrant raids of news offices violated theFirst and Fourth Amendments (see PCN II, p. 14 andPCN V, p. 33). He said that police should pursue the lessdrastic alternative of the subpoena process because itwould give the news organization notice and anopportunity to raise First Amendment objections in courtbefore producing the material and would preclude thedanger of police sifting at will through confidential newsfiles.
In addition, California has a strong law barringsubpoenas for confidential news sourcesa law which iscompletely useless if police decide to use search warrantsto obtain what they can't get by subpoena.
Despite the clear holding of the Stanford Daily deci-sion and the state shield law, police in California con-tinue to conduct no-notice searches of news offices. Therehave been at least four such searches in the past year ofthe Los Angeles Star, the Berkeley Barb (two warrantsserved on the Barb's attorneys) and of radio stationsKPFA-FM in Berkeley (see PCN IV, p. 25), KPFK-FM inLos Angeles and KPOO-FM in San Francisco.
The searches of the radio stations were all directedagainst stations with strong informational links to theradical community and with known policies ofprotecting confidential news sources. Two of the searchesofKPFK and the L.A. Starwere prolonged, massivesearches of news offices where police also seizeddocuments apparently unrelated to their investigations.
2. LOS ANGELES POLICE CONDUCT NO.NOTICE SEARCH OF RADIO STATION FOR 8HOURS AND SEIZE FILES.
In October, Los Angeles Pacifica station KPFK-FMreceived a communique from the "New World LiberationFront" relating to a recent bombing of the SheratonAirport Hotel in Los Angeles. KPFK broadcasted pottions of the communique as a news item and released thefull text to other news organizations.
Los Angeles police officials demanded the stationturn over the original of the communique. Stationofficials gave the police a copy of its contents but refusedto turn over the original, citing the First Amendment andthe California shield law.
On October 10, representatives of the Los AngelesPolice Department arrived at KPFK's studios with a
no-notice search warrant and, for over eight hours,conducted a complete search of all the station's files andfacilities. Although the police did not find the originalcommunique, they rifled the files and seized documentsbelonging to the station.
The Los Angeles Times, the Los Angeles Press Cluband Sigma Delta Chi have joined KPFK in condemningthe search. The station is planning to file suit against thepolice.
CALIF. STATION HIT WITH SEARCH WAR. 3.
RANT GIVES UP RADICAL COMMUNIQUETO POLICE
San Francisco radio station KPOO is a self-styled"Third World inner city community station" that isalmost entirely listener-supported and volunteer-operated. Along with several other alternative radiostations and newspapers in California, KPOO hasreceived communiques from the "New World LiberationFront," claiming credit for a series of West Coastbombings of ITT facilities.
On October 16, KPOO received a photocopied letterfrom the extremist group announcing the bombing of theITT-owned Sheraton Palace Hotel in San Francisco anddemanding the release of Chilean political prisoners. Theonly person at the station, who was broadcasting a musicshow, called the police and told them about the letter,
Seven San Francisco policemen and one F.B.I. agentarrived at the station and asked for the letter. Otherstation officials who had been contacted in the interimrefused to relinquish it without a court order.
Station Clarifies Policy
The police then obtained a search warrant andreturned to the station where they were given the letter.
The next day, the New World Liberation Frontcontacted KPOO and demanded that station officials goon the air that day to explain station policy with regard tocooperating with law enforcement authorities.
KPOO staff people then met and announced that allmaterial sent to the station would be considered as"public domain" for broadcast purposes and would bedistributed to other news media. They said that thestation would not act as a "police information agency"and would respond to law enforcement requests only ifthere was a court order in which a KPOO attorney hadparticipated.
Two weeks later, KPOO received another com-munique from the New World Liberation Front which"instructed" the station not to divulge any informationto the police and not to give copies of communiques tothe press.
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Confidentiality/State Executive
4. L.A. POLICE MAKE NONOTICE RAID USINGCRIMINAL LIBEL LAW: FILES SEIZED
On October 15, the L.A. Star, a weekly SouthernCalifornia tabloid, published a composite photographsuperimposing a picture of actress Angie Dickinson'sface on the shoulders of an unidentified nude femalebody in a sexually explicit pose.
Two days later on October 17, Dickinson signed acrime report but said she would not go to court toprosecute. The Los Angeles city attorney's office thenfiled a criminal libel complaint against Paul Eberle, hiswife Shirley and Mickey Leblovic, publishers of the Star.
The California criminal libel law provides for fines ofup to $5,000 or up to one year imprisonment in thecounty jails for actions of "malicious defamation tendingto blacken the memory of one who is dead, or to impeachthe honesty, integrity, virtue, or reputation of one who isalive and thereby expose him to public hatred orridicule." Under the law, truth may be asserted as anaffirmative defense,
That saw^ day, police using search warrants, seizedthe printing plates and layout sheets used to publish theOctober 15 paper from a printing facility in nearbyRiverside, California.
Later that night, police also seized 12 manila folderscontaining artwork, photographs, editorial copy andaddress books from the Star editorial offices pursuant toa search warrant but without a prior judicial adversaryhearing.
The following day, publisher Eberle was arrested andcharged with a misdemeanor for violation of theCalifornia criminal libel statute.
In response to these actions, Star attorneys have filed a$1 million damage complaint in federal court against theLos Angeles police department charging them withunlawfully exercising a prior restraint against publica-tion in derogation of the First Amendment and seizingnews material without a prior adversary hearing.
The suit seeks declaratory and injunctive relief againstfurther prosecution under the California criminal libelstatute, challenges i+s constitutionality and requests thereturn of materials taken by police during their search.
BERKELEY BARB HIT WITH SEARCHWARRANTS FOR RADICAL DOCUMENTS
The Berkeley Barb has been subject to two searchwarrants in the past year for documents sent to the paper.by radical sources: one warrant from Alameda Countypolice in February for a letter from the SymbioneseLibrarion Army on the Patricia Hearst kidnapping andthe other in June from the F.B.I. for a letter from theBlack Liberation Army.
Because the Barb staff had given the documents totheir attorneys, both warrants were served on theattorneys who then turned over the letters.
5.
After the Barb received and printed severalcommuniques from the New World Liberation Front inOctober, staff members notified law enforcementofficials that they would no longer automatically releasedocuments in response to police warrants or subpoenas.The Barb staff is currently devising a policy for handlingconfidential material sent to the paper.
FEDERAL COURT BARS NONOTICE POLICE G.
SEIZURE OF MAGAZINES
In July, 1973, representatives from the Tulsa,Oklahoma, district attorney's office, accompanied by aTulsa County judge, confiscated over 100 boxes ofallegedly pornographic materials belonging to the SoonerState News Agency, a magazine wholesaler. The Agencywas given no advance notice of the search and tiled suitlater that month seeking the return of their materials.
A three judge federal panel concluded in December,1973 that the confiscated newspapers, films and bookswere "presumptively within the protection of the First,Amendment. A mass seizure of such material," the panelsaid, "without a, prior adversary hearing and a
determination therein that the material is obscene,
constitutes a prior restraint on the circulation ofpresumptively protected material and as such violates thefederal Constitution."
The judges ordered the return of the confiscatedmaterials but allowed the D.A.'s office to retain a singlecopy of each item seized to be used in evidence incriminal prosecutions for violations of the obscenitystatutes.
State Legislative
OKLAHOMA PASSES WEAK SHIELD LAW;PERMITS SUBPOENAS FOR "RELEVANT"INFORMATION
The Oklahoma Legislature has passed, and Gov.David Hall has signed, a limited newsman's privilegelaw. The new statute provides that no newsman will berequired to reveal any of his sources or turn overunpublished information unless a court determines thatthe information sought "is relevant to a significant issuein the action and cannot be obtained by alternatemeans." The law also does not apply to defamationactions in which reporters base their defense uponconfidential sources or unpublished information.
The law appears to be one of the weakest in force,mainly because, under the rules of evidence, virtually anyinformation is considered "relevant." The statute is
similar to the Justice Department Guidelines ("Thereshould be sufficient reason to believe that the
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7.
Confidentiality/State Legislative
infvemation sought is essential to a successful investiga-tion...The Government should have unsuccessfullyattempted to obtained the information from alternativenon-press sources"), and the looseness of thoseGuidelines may have resulted in their abuse (see TomBlackburn story, this PCN, p. 39 and Will Lewis story,this PCN, p. 38).
Oklahoma is the twenty-sixth state to have enactedsome form of reporters' shield. The other 25 are:Alabama, Alaska, Arkansas, California, Delaware,Illinois, Indiana, Kentucky, Louisiana, Maryland,Michigan, Minnesota, Montana, Nebraska, Nevada, NewJersey, New Mexico,* New York, North Dakota, Ohio,Oregon, Pennsylvania, Rhode Island, and Tennessee.The Reporters Committee will supply texts of thesestatutes upon request.
8. HAWAII COUNTY PASSES FIRST LOCALSHIELD LAW IN NATION
On November 5, voters in the County of Hawaiiapproved a county charter amendment which providesthat "no legislative or administrative body, or any otherCounty body having the power to issue subpoenas" shallbe able to force a reporter to disclose "the source of anyinformation procured...for publication." The amend-ment, which took effect immediately and cannot berepealed except by a future referendum, passed on a12,886.9,655 vote.
As far as The Reporters Committee is aware, theCounty of Hawaii is the first political subdivisian belowthe state level to grant legal protection for reporters. Itis also the first time that the question has been placedWore the voting public on a general election ballot.
The state of Hawaii does not have a shield law.
9. WISCONSIN BILL TO PROTECT MEDIATELEPHONE RECORDS DIES
Wisconsin State Rep. Edward Nager (D-Madison)sponsored legislation which would have prohibitedtelephone companies from disclosing private telephoneand telegraph records in matters not related to thepurposes of billing (see PCN IV, p. 25). Introduced inFebruary, Assembly Bill 1640 was approved by theAssembly Judiciary Committee by an 8.3 margin onMarch 29, but died when the legislature adjourned inJune.
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CALIFORNIA PASSES ABSOLUTE SHIELD 10.
LAW; PROTECTS BOTH SOURCES ANDCONTENT OF UNPUBLISHED INFORMATION
California's current shield law (Section 1070 of theCalifornia Evidence Code) provides that a reportercannot be held in contempt by any judicial,administrative or legislative body for refusing to disclose
"the source of...published" information. The law,however, does not appear to protect newsmen who refuseto reveal the source of unpublished information.
On March 13, state Sen. Alfred J. Song (D-MontereyPark) and 11 co-sponsors introduced S.B. 1858 to extendexisting protection to cover the source and content of allunpublished materials, including newsmen's notes, film,and tape recordings. The bill passed in the final weeks ofthe legislative session and signed by Gov. Ronald Reaganin late September. The new law will take effect inJanuary 1975.
CALIF GIVES SHIELD LAW RIGHTS TO 1I.MAGAZINE REPORTERS
A second amendment to California Evidence CodeSection 1070 was A.B. 3148, which extends reporters'privilege to persons "connected with or employed upona...magazine or other periodical publication." The bill,introduced by State Assemblyman Alan Sieroty(D-Beverly Hills), was approved both by the Assembly(64.0) and Senate (21.13) and was signed by Gov.RonaldReagan in late September. This was done because theexisting law, even with the Song amendment, did notprotect writers for periodical publications.
The California law now reads:
"A publisher, editor, reporter, or other personconnected with or employed upon a newspaper,magazine, or other periodical publication, or by a pressassociation or wire service, or any person who has been soconnected or employed, cannot be adjudged in contemptby a judicial, legislative, administrative body, or anyother body having the power to issue subpoenas, forrefusing to disclose the source of any informationprocured while so connected or employed for publicationin a newspaper, magazine or other periodicalpublication, or for refusing to disclose any unpublishedinformation obtained or prepared in gathering, receivingor processing of information for communication to thepublic.
'Unpublished information" includes information notdisseminated to the public by the person from whomdisclosure is sought, whether or not related informationhas been disseminated and includes, but is not limited to,all notes, outtakes, photographs, tapes or other data ofwhatever sort not itself disseminated to the publicthrough a medium of communication, whether or notpublished information based upon or related to suchmaterial has been disseminated."'
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Confidentiality
State Subpoenas too Contempts
12. LUCY WARE MORGAN CASE PENDING
Two criminal contempt of court citations carryingprison sentences of 8 months are still pending against St.Petersburg Times reporter Lucy Ware Morgan forrefusing to identify a confidential news source in a grandjury probe (see PCN IV, p.16 & PCN 111, p.9).
13. MIAMI HERALD REPORTER SUBPOENEDFOR INTERVIEW WITH RAPE VICTIM
The Miami Herald published an interview onDecember '23, 1973 describing the experiences of analleged rape victim, "Lisa," as told to Bea Hines, aHerald reporter.
The state charged Austin I. Stoney in connection withthe alleged rape. Lawyers for Stoney then sought tosubpoena Hines to require her to testify at the trial and toproduce "all notes, memoranda, news articles and allother writings" concerning "Lisa," whom they saidwould be the principal prosecution witness.
The defense lawyers said they were planning to show attrial alleged inconsistencies between various statementsmade by the alleged rape victim. For that purpose, theysaid they would first call another witness, who had beenpresent at Hines' interview with "Lisa." But they saidHines' testimony would be needed if the first witness'testimony was impeached on cross-examination.
On August 13, a Florida state court judge grantedHines' motion to quash the subpoena.
The judge relied primarily on First Amendmentgrounds. He said there had been no showing of acompelling need for the reporter's testimony and notes,and no indication that the information sought was notavailable from other sources.
Therefore he ruled that the First Amendmentprevailed, protecting a reporter's right in a criminal casenot to reveal sources and unpublished information unlessevidence is "so important" that its nonproduction wouldviolate the defendant's wnstitutional rights.
14. FLORIDA REPORTER SUBPOENAED OVERFAULTY BUILDING REPORT
The October 29, 1974 issue of The (Jacksonville, Fla.)TimesUnion carried a story by reporter RandolphPendleton about a downtown Jacksonville building whichwas then the subject of a civil lawsuit. Pendleton quoted,named federal government housing officials as saying aportion of the building had been condemned because ofcracks and other structural damage. The building's
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owner, claiming the damage had been caused by therecent erection of an adjacent building, was suing thecontractors responsible for its construction.
A defense attorney in the civil action served Pendletonwith a subpoena directing him to testify by depositionabout his October 29 article and to produce all of hisnotes relating to the article.
The subpoena did not indicate the scope of theplanned questioning, and the reporter's story had notreferred to any unnamed confidential sources, Therewere indications, however, that the defendants in thelawsuit wanted to learn who put Pendleton on to the storyabout the government condemnation proceeding.
One hour before the scheduled deposition ofNovember 1, a Florida state court judge grantedPendleton's motion to quash the subpoena.
Describing the subpoena as an apparent attempt "toinquire into the gathering of news and the sourcesthereof," a judge ruled that no showing had been madeto justify "what would appear on its face to be a violationof the First Amendment freedoms of the news media."
The judge said that even in criminal cases, a compel-ling need for the information sought from a reportermust be shown under the Supreme Court's Caldwelldecision, and he noted that this was a civil case.
NEW YORK TIMES REPORTER SUBPOE. 15.NAED FOR POLICE HOMICIDE STORY
On April 28, 1973, a 10yearold Queens, N.Y., boywas shot to death by Police Office Thomas J. Shea, afterthe boy and his stepfather had allegedly fled when Sheaand his partner sought to question them about thenearby holdup of a cab driver. The shooting was followedby scattered violence in the neighborhood, and formalprotests by community and civil rights leaders.
Two days after the shooting, New York Times reporterRonald Smothers published an interview with the boy'sstepfather, Add Armstead, who gave his account of theincident.
Officer Shea was charged with murder in the boy'sdeath. Armstead was the chief prosecution witness atShea's four-week trial in May and June of 1974.
Toward the end of the murder trial, defense attorneyssubpoenaed Smothers to testify. They claimed that thereporter's testimony was needed to bring out allegeddiscrepancies between Armstead's published account ofhis stepson's shooting more than a year earlier, and histestimony at trial.
Sources Not SoughtOne of the defense lawyers argued he was "not asking
for his notes or sources but only if what he wrote was saidto him by Mr. Armstead,"
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