Alan M. Dershowitz

professor of Law, Harvard University

MY NAME IS ALAN Dershowitz and my sole distinguishing characteristic on this panel is that I have never had anything whatsowever to do with The Harvard Crimson...Let me introduce the panel to begin. Then I'll make a brief introductory statement and we'll be on ou way. At the extreme left is Mr. J. Anthony Lukas, graduate Harvard 1955, who is currently a free-lance writer and contributing editor of MORE, a new national journalistic review. He served with The New York Times for ten years successively in Washington, the United Nations, the Congo, India and on the Sunday Magazine. He has won a Pulitzer Prize, the George Polk Memorial Award and the Mike Berger Award and several others in 1968. He's written two books, The Barnyard Epitaph and Other Obscenities, which is a book about the Chicago conspiracy trial, and an absolutely brilliant and sensitive book called Don't Shoot, We are Your Children, a collection of essays about young people. He's currently working on another book and teaching at Yale. To his right is Professor Stephen R. Barnett who graduated Harvard in 1957 and Harvard Law School in 1962. While he was here, he was on The Crimson and served as its President. After Law School he was the law clerk for Mr. Justice Brennan, probably the Justice on the Supreme Court who has taken the most interest in the rights of the press and has written the most important opinions on the rights of free press. He's now a Professor of Law at the University of California at Berkeley specializing in the law of mass media, on which he has an article in the current issue of The Nation. To his right is Professor Hiller B. Zobel, who graduated Harvard 1953 and the Harvard Law School in 1959. He was the associate sports editor of The Crimson, practiced law in Boston and now teaches at the Boston College Law School. He is co-editor of the legal papers of John Adams and author of an intriguing book on the Boston Massacre. To my right is Sanford Ungar, who is now staff writer for The Washington Post, where he has been serving since 1969. He is currently a member of the national news staff covering the Justice Department and the FBI; he was previously assigned to the Federal courts and now is covering the Ellsberg trial in Los Angeles. He is the author of a book called The Papers and The Papers, an account of the legal and political battle over the Pentagon Papers, the Senator Gravel case and the almost revolution. He was an associate managing editor of The Crimson while he was here. And to his right is Mr. Irvin M. Horowitz who is the, or, starting with important things first, was the sports editor of The Crimson and briefly the managing editor back in the years 1943 through 1947, with some Army experience in the meantime. He's now assistant national news editor of the The New York Times, which he joined in 1957 as a copy editor on the national news desk. Between 1964 and 1966, he served as an assistant news editor of the international edition of The Times Tribune in Paris--the Times part of it is now defunct. In 1972, he coordinated national political coverage from the New Hampshire primary through election day.

BEFORE WE TURN to the panelists, I just want to say a brief personal word to introduce the subject of today's discussion and I want to do it by trying for just a moment to put freedom of the press in the United States in 1973 into a proper perspective. We are surely not, at least in my view, as some radicals would have us believe, a repressive society. We are not as Charles Reich of Yale would have us believe, on the brink of totalitarianism in this country. We are by any objective standard among the freest countries in the history of the world and perhaps the freest press that the world has ever known. But there are attempts abroad in the land, from the highest places, to cut back on this freedom, to make the press more responsive to the wishes of the government in power and less critical of its actions. The recent flap over confidentiality of news sources was only the tip of a very ugly and dangerous iceberg. As Henry Steele Commager recently put the broader issue, "Not since the presidency of John Adams has any administration so instinctly distrusted the exercise of the freedom of the press." Nor should the fact that we are, and are likely to remain in my view, the freest nation with the freest press, make us less vigilant in preserving our liberties. As Justice George Sutherland put it many years ago, "Do we the people of this land desire to preserve the First Amendment. If so, let us withstand all beginnings of encroachment, for the saddest epitaph which can be carved in the memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time." I think that provides an appropriate theme for today's discussion and what I would like to do now is simply call on each of the panelists, in order of where they are sitting, to speak for five minutes or so. Then we'll have an exchange among the panelists and then we'll welcome questions and discussions from the floor. Let me begin then by calling on J. Anthony Lukas.

J. Anthony Lukas

contributing editor, MORE Journalism Review

BEFORE I MAKE MY remarks--I assume this does not cut into my five minutes--I've been asked to read a telegram which is addressed to Dan Ellsberg in Los Angeles. I note that appropriately enough Mr. Ellsberg is now living in something called Bunker Hill Towers in Los Angeles. The telegram reads, "On the occasion of the celebration of the 100 Anniversary of The Harvard Crimson we are immensely pround of the brave and important contribution you, one of our former editors, has made to the freedom of the press, to the ideal of open government in which the people have the information they need to participate meaningfully in the public decisions that have a crucial effect on their lives. We greatly regret that the government's lack of sympathy for these fundamental American principles prevents you from being with us at this celebration. Nevertheless our thoughts and our hopes are with you and we celebrate your efforts as an expression of the best traditions of The Harvard Crimson. Executives and staff of the Crimson" That's signed by a number of people who were here when Dan Ellsberg was here, and I have been asked to say that although we are not soliciting hundreds of signatures--it really would not be meaningful to him--if there are people who knew him when you and he were here together I assume that he would appreciate your coming forward and signing it if you wanted to.

AS FAR AS THE subject at hand, I would like to say that I share Alan Dershowitz's view. I think my perspective is much the same as his. I think we do have a free press in this country. I do think there are dangers. But I'd like to say that I think that those dangers are as great from within as from without. I think that what we're facing now is, ironically, as much internal restraint as outside repression. Perhaps that outside repression or outside attempt to control or inhibit the press is reinforced and really given its greatest impact through internal restraint by newspapers and, at times, by outright cowardice. I think that the worst thing about the Agnew attacks was not that they directly destroyed the journalist's will to resist, but that they gave editors a very curious argument--an argument which I think has been terribly effective. I can speak with some personal experience in this regard, because I have been confronted directly or indirectly in this argument a number of times at my former employer, The New York Times.

The argument which I confronted is "you really have no right to be doing what you're doing now--to be subjecting us to the kind of criticism you are subjecting us to. Don't you see that you've caught us in a vice. We are resisting the pressures from the administration and yet we're being undercut and sabbotaged by our own people. For crying out loud, lay off! Let us defend! Let us, the editors of The New York Times, or the editors of The Washington Post, or the editors of Newsweek, or the executives of CBS, let us take care of the First Amendment. Don't you worry your head about it. Don't you worry your head about the performance of the press."

Now I have a great deal of respect for many of the men who say this, but I think they're wrong. I think the worst thing about Agnew's attack is that it has given some apparent credence to that kind of argument against internal criticism. "Since we are publishing the Pentagon Papers, lay off us!" What's really wrong with the press's performance in this country today was wrong long before, Spiro Agnew decided to attack the press. The inhibitions, the failure to date, the failure to do really good investigative reporting, the failure to do sympathetic and empathetic reporting about social affairs--these were wrong long before Spiro opened his mouth. They are still wrong, and I do not believe that the fact that the press is under attack from outside is any reason for us--I still regard myself as a working journalist, though I don't work for an organization anymore--for us as working journalists to lay off.

I would like to give you just one example if I may, one example of what I mean by this. What to do I mean when I say that it's inner inhibition as much as outward repression which is the problem? My feeling is that the most inhibiting possible thing in the Washington Bureau of the New York Times--and I am being specific here because I no longer have to worry about not being specific--is the fear of the bureau chief of that paper, and here I don't mean any particular bureau chief, that he is going to get a call at 6 p.m. some night from the National Desk, or worse yet from the managing editor, and the call is going to go something like this: "Listen, we just got word that AP is carrying a story, or that The Washington Post is carrying a story, that Kissinger has been meeting with Le Duc Tho somewhere and has just agreed to trade the franchise of the Washington Redskins to Hanoi for the prisoners and they're going to be released in Bangkok starting tomorrow morning at 7 p.m. G-130's will be flying them, and we need that story for the first edition." That's an hour and half away, at the most two hours. The bureau chief runs out and he grabs the White House correspondent, or the diplomatic correspondent. He says, "Look, Jesus you know, we've got to get this story, The Post is carrying it and it's one of the biggest stories ever--the Redskins, hometown team, you know--we got to get this story." So they both sit there and the guy says, "Who are we going to call?" They pick up the phone and they call Kissinger. "Hi, Henry, how are you this is Tony Lukas at The Times, yeah how are you? Listen, The Washington Post is carrying the story...ah, you know anything about it? Ah, you don't know anything about it at all, Henry? No, nothing." I mean of course this is hyperbole; he's not getting through to Kissinger. He's getting through to one of his assistants. The fact of the matter is that this is really a big story, a big, big story on deadline, and you can't match it. Right. And you've got to call the managing editor back and say, "Nobody over there will talk to me." "Oh, why won't they talk to you?" Because he rubbed their nose in it a little bit yesterday, he did something so they won't answer the phone, or if they answer the phone, they won't know what he is talking about.

Earl Caldwell used to report on the Black Panthers - then the grand jury got to him.

Caldwell took his case up to the Supreme Court also but five of the justices said he had to reveal his sources.

By that time however the grand jury had disbanded and was no longer interested in talking to Caldwell. Of course neither were the Black Panthers.

THE DEPENDENCE ON SOURCES is great in any administration but in my view in this administration--I hasten to add that I have not covered the Nixon Administration in Washington and I don't want somebody out there to say it, I'll admit it...but I have talked to many people who have--my impression is that the dependence on sources now is so great that that fear must operate with any reporter. But I feel that one of the greatest single things a managing editor of a great American newspaper could do would be to say to his White House correspondent, or to his diplomatic correspondent, "Look, you are not doing your job well unless five times a year you get beaten on a big story, because if you don't get beaten on a big story every once in awhile, I'll know that you're much too cozy with your sources." And why should they be available to a reporter every time he picks up the phone? There have got to be a couple of times where you pick up the phone and you have outraged them that week. And the simple fact of the matter is that on most Vietnam stories, the State Department is not a good source anymore. I mean, Rogers doesn't know what's going on. There are about four guys who know, probably, in Washington. If you've been doing your job, probably five times a year you've outraged those guys. But the fact of the matter is...that newspapers don't run that way. Newspapers want to match the opposite paper every day of the year--and thus the pressure to play the source game. Thank you.