Stephen R. Barnett

professor of Law, University of California, Berkeley

I THOUGHT I WAS going to be taking a rather off-beat tact, and I feel somewhat upstaged by what Tony just said because what I mean to say is quite similar...I'm also concerned about...internal restraints on the press and about the information that gets through to the public, rather than about the governmental restraints that we are usually concerned with. I would suggest that while we hear about the press as an entity--and Tony did too--it seems to me that it's really important to make a distinction, a distinction that the Nixon Administration for one makes very carefully and distinctly and calculatedly but that others don't make so much. This is a distinction between the journalists in the press and the owners of newspapers and the broadcast media as well. Now it may be that among the media that Tony talked about--The New York Times, The Washington Post, Newsweek, CBS--are unusual cases where there is not the kind of conflict and difference of interest that I see in many outlets of the press between the journalists and the meida. I would suggest that if the attacks on the press that we see today are to be repelled, it is going to take an effort by journalists not only against the government--not only to win the battles against the government in terms of subpoenas, in terms of the Pentagon papers, and so forth--but also an effort by the journalists against the owners of the media.

Now why is this so? I think one can look and see that the Nixon administration's attack on the press has not been a blunderbuss attack--it's been in part a very careful effort to separate out the owners from the journalists and to cater to the different interests that the owners have, largely economic interests, and in that way to get at the flow of information. At the same time, in sort of a pincer movement, they do have Agnew or Whitehead or whoever, attacking the journalists as such. Over the past four years, this hasn't been too well reported and it's significant that it hasn't been too well reported. The reason becomes pretty obvious--there have been a whole series of moves by the administration, while attacking the press on one front, to massage its economic interests on the other. For example, a couple of years ago, when all the chain papers in the country wanted Congress to pass this thing called the Newspaper Preservation Act, Congress did so to the accompaniment of very little coverage in the press. The Nixon Administration, overruling its own Justice Devartment, supported that bill and Nixon then signed it. You can see it too in FCC appointments. Nixon's appointments to the FCC have been completely friendly to the industry, in fact, it seems to me, they've probably been cleared by the industry ahead of time. Dean Birch is the one exception. He's only about 85 per cent pure from the industry point of view; he happens to have a conscience and a pretty good mind, and therefore he can't go along with quite everything, so they are trying to throw him out apparently.

You see it also in various private meetings that the Administration has had with the owners of the media. There was one last June with broadcast executives in Washington at the White House. A couple of years ago, Nixon went around the country to brief the press and the people he briefed of course were the publishers, the owners--not the newsmen, in many cases not even the editors. That is a part of the effort; of course, I'll get in a minute to the leading example of that, which is Whitehead's current campaign. But this has succeeded in many ways...in dampening the flow of information for the public. It has succeeded as well as the frontal attacks...It was reported recently that management of CBS stepped in during the campaign to cut down a documentary they were doing on the Watergate affair at the behest of or in response to pressure by, the White House. CBS is generally good about these things; CBS claims that its management never interferes in its news judgment--if this story is correct it's one exception to that--but there are many outlets of the media which don't make any such claim.

OF COURSE, THE LEADING example and the clearest case of manipulation of management is the recent license renewal bill proposed by Clay Whitehead which is...trying to give the owners a present if they in return will cut down on the news. "We'll give the owners of the stations a five year license term, and protect them from challenges if they eliminateideological plagoola and elitist gossip from the network news." Of course we all know what that means. The theory of it is, as Whitehead says, to get the local station owners who supposedly are the pillars of the community, the people to whom we give the licenses, to be the ones who control the news, the national news yet, rather than the journalists. And of course if this works, one can see what the effect will be. It's been suggested in the current Newsweek cover story on the media that it's already working--someone is quoted there as saying, "What do you think your chances would be these days of getting local network affiliates to clear a documentary on the bombing of Hanoi?" One can see they might not be too good. Well, if one analyzes exactly what's in the Whitehead Doctrine it becomes clear that it's been attacked largely on the wrong ground. It's been attacked on the ground, the technical ground, of "How the hell can the local station have time to step in and cut off Walter Cronkite even if it wanted to?" Beyond that, and of more substance, it's suggested, "Why is a local station owner in a position to know what to do about national news anyway?" I think that is the wrong issue, too.

When one looks at the fact, one finds that these local station owners Whitehead is talking about don't exist. In general, the big television stations are owned by national companies, by the networks among others, so that you have national owners in the first place, so that the conflict isn't there. If Whitehead really means the local managers rather than the national owners, one would have to ask, "Are they willing to guarantee the independence of the local managers from their national bosses?" During the campaign the Newhouse organizaiton, which owns four television stations around the country, sent out a wire to all of them to endorse Nixon for re-election. Is the White House through Whitehead willing to protect the local managers against that kind of national control so they don't have to take orders if they don't want to? It's obviously an impractical way to run a national organization.

Further, we don't infact choose the station owners the way Whitehead suggests we do; he says we license these people because they are pillars of the community, therefore let them control the news. In fact, of course, you can buy a station if you have the money for it--it takes lots of money--and then the FCC will approve your getting the license. What Whitehead may come down to then is simply saying that the station owners are responsible and therefore they should control the news. They are responsible in the literal sense that they are the guys the FCC can take the license away from.

That becomes a circular argument because Whitehead goes on to say that therefore, we don't have to have the FCC looking over their shoulder, we don't have to require them to balance the news and so forth, because they are good guys. But if the basis of their being good guys is that the FCC does have power over them, then it's a circular argument. So what the real White House position comes down to, it seems to me, is they want the news controlled not by newsmen but by businessmen, by the owners, the managers of the stations. It's suggested that the businessmen are more conservative than the newsmen, and that may be true. I find that an invalid argument because I can't subscribe to the notion that it is a good thing that the newsmen are liberal and we want a liberal slant on the news rather than a conservative slant.

IT SEEMS TO ME THAT while there is something to that, the stronger argument is they (the Administration) want the businessmen to control the news because the businessmen, unlike the journalists, are vulnerable to White House pressure, vulnerable to economic pressure--they'll do anything not to lose their broadcasting licenses. The publishers a couple of years ago would do anything to get this Newspaper Preservation Act passed. They are the people who are vulnerable to White House pressure and that is why the White House wants them in control of the news. So it seems to me from all these points of view that there is a threat, and one can already see an impact on the news from the private constraint that comes from the owners of the media as distinguished from the journalists. I think that the journalists themselves should assert their rights not only against the government, but they should seek ways to assert their rights, demand new rights against the management. Now there are various ways in which this might be done. This leads to the whole movement of so-called democracy in the newsroom, which strikes me as something of a misnomer because you do want editors and you have to have a hierarchy. But the notion is that the news should be controlled by the professional journalists and that the management should have no right to interfere, and this is supposedly the creed that is followed by The New York Times, The Wall Street Journal, a more conservative kind of paper, CBS, and etc. And it seems to me that movement is quite related to the danger to the information flow. There are various ways this can be brought about--collective bargaining is one of them. This is already started, there is a lot of talk about this in the journalism reviews.

Also, through the FCC; the FCC has cases saying you can't have a newsman with a conflict of interests. When Chet Huntley was broadcasting a commentary about the media industry at a time when he owned a corporation in the media industry, the FCC said that's bad. It seems to me that you can apply the same thing to the managers, since they have these conflicting interests: the owners--they should not have the right to control the news, the right that Whitehead says they should have. And I would suggest also that the newsmen ought to do more whistleblowing of this kind, even at the peril of their own jobs. If CBS is shortening a documentary, if a newspaper is not putting the Watergate affair on the front page, I'd like to see more whistle-blowing...

Hiller B. Zobel

professor of Law, Boston College

I COME TO SPEAK NOT IN LARGE terms, because my own predilection is to do things microscopically. The aspect of the press-government or First Amendment tensions that attracts my attention these days is the growing, amorphous debate over whether or not newspapermen and women journalists should be exempt from testifyign before a grand jury or elsewhere...concerning the sources of their stories. Now there is in the journalism profession, obviously, a high dependence on sources. I think the story that Tony Lukas began with today will clearly illustrate that. The question is whether that dependence on sources is of such Constitutional importance that a newspaperman being asked to testify should be permitted to say that he will not testify as to information which any other citizen so situated would have to disclose at the risk, for non-disclosure, of spending some time behind bars. The question is whether a newspaper person who has been told something in confidence by an individual on the outside should have the privilege to refuse, at the newspaperman's discretion, not to reveal even the name of the source.

THUS, A REPORTER WHO has interviewed a member of a motorcycle hell squad, just to take one lurid example from millions, when asked in the course of a grand jury investigation into a murder supposed to have been committed by that hell squad, can if there is to be a journalistic priviledge refuse to disclose any information pertaining to the crime so long as that information has been disclosed to him in confidence. Further, he need not disclose the name of his informant. Now the thing that bothers me about the dispute over the journalistic priviledge is that it tends to create automatically white-hat, black-hat. There is an assumption that a journalist being asked to disclose the identity of his source is being asked to do so in order that justice may triumph, in order that repressive government may flourish, and in order that a lazy district attorney may somehow save the police some time. Furthermore, there is generally...an assumption that if there is not to be a journalistic privilege is that it tends to create its ability to exhume dishonesty and impropriety in government. Because nobody will talk to a reporter, so the argument goes, unless the reporter can guarantee that the sources of identity will never be revealed.