Mr. Hume of the Anderson entourage wrote a very appealing piece in The Times Magazine section about a month ago, in which he said, in words or substance, that if a government source couldn't be guaranteed anonymity, the government source wouldn't testify. Well I throw open to the assembled group whether that is an a priori assertion or whether it is really true--demonstrably true. It seems to me that people in government with information very frequently don't care whether their names are used or not when they go to a reporter. Another point that I think is worth talking about is the ownership of the privilege That is to say, who can claim it? In analogous privileges in the law, for example, the attorney-client privilege, or the doctor-patient privilege, the privilege belongs to the person who has imparted the information. The lawyer can not testify to what the client told him, unless the client so authorizes it. Furthermore, the client himself can't be compelled to testify as to matters imparted in confidence to his attorney.

Now the journalist's privilege as it is postulated in various shield laws and draft shield laws and arguments concerning them, is that the journalist himself is going to decide when the information will be made public. He's going to decide for himself when the source will be revealed and as I understand it, the argument is that there is a sanction on the journalist--and that is if he ever peaches a source, he'll never get another source again. I wonder if that's a priori or for real.

The last thing that I want to say at this point--reserving the right for rebuttal--is that once we establish a workable, that is to say an identificable journalist privilege, once we have a standard, it seems to me that constitutionally the standard is going to have to be sufficiently general so that it will cover situations such as one that arose in Boston a couple of days ago, where a defendant had information that two journalists knew of a conspiracy. Now this is of course allegation but that doesn't destroy the import of the example. He had information that these journalists had talked to members of a conspiracy to prejudice in effect a pending criminal trial. In the course of the hearing to transfer venue he, the defendent, summoned the two journalists and wanted to get them to disclose their sources. Now there are large issues of relevancy which dilute this example, but the point is still there, and that is there are going to be times when a good guy or woman is going to want to cause a journalist to talk and it bothers me when we try to establish a privilege covering journalists that we're going to cover too much.

Sanford J. Ungar

staff reporter, The Washington Post

I'D LIKE TO START OUT by taking issue with something that Tony Lukas said that I think goes to the heart of some of the problems that the press is having in the United States today. Tony suggested that the dependence on sources is greater now during the Nixon Administration than in the past, and I really don't think that is true. I think that the difference is that journalists, for the most part--especially those who work for the so-called Eastern establishment newspapers--were very in and very chic during the Kennedy and Johnson administrations. Their friends were White House advisers, State Department and Defense Department officials; people they'd gone to school with, people they knew and lived near; and they depended on sources enormously during the Kennedy and Johnson administrations. But it was easy at that point. Now there is an administration in Washington which is populated by people from, of all places, Arizona and other places out in the heartland that the journalists in Washington and New York and Boston don't know, and don't know how to reach as easily.

EVEN WITH HENRY KISSINGER there I think it's a different situation only in the perception of the reporters and the ease with which reporters can perform their jobs. And so the difference is in one respect, I think, that the press was used very successfully by the Kennedy and Johnson Administrations; I think there was no better example of that than the way in which The New York Times and the way in which The Washington Post were forced to defend themselves during the civil litigation over the Pentagon Papers. When they came into the court with affidavits opposing the Justice Department's request for preliminary injunctions, the affivadits were full of stories about how editor X or reporter Y had met in the White House with President Kennedy or President Johnson. And President Kennedy had shown him some material that was top secret and was, under the current Justice's Department definition, injurious to the national interests. And there was one story after another in those affidavits on how chummy these editors and reporters had been with the Kennedy and Johnson administration people.

Well, that worked; it avoided the injunctions, it contributed greatly, I think, to the decisions of the courts that they could not grant a prior restraint in this case because, really, The New York Times and The Washington Post in one sense were doing just what people had done before. But I think it showed something very important about the way the press has operated in the United States, especially in the 1960's, which is the period of time that was relevant then. And that is that the press has been very, very willing to cooperate with the government system, with the bureaucrats who want to provide information without having their names attached to it, and the press in the United States has in many ways performed a Pravda-like function in getting the views of President Kennedy and President Johnson across to the people without any opposing point of view included in the stories. And I think that it was especially clear during the Pentagon Papers incident that suddenly the press was really confronted with an administration that was less cooperative with the press.

There was no pretense, at the time that reporters were doing their stories under the Kennedy and Johnson Administrations, that those documents were being given to them by President Kennedy or President Johnson or some other high officials because it was in the interest of the high officials to do so and the press was cooperative. The press was being a fully cooperative and dues-paying member of the establishment that helped control the access to information of the American people. I think that one of the differences now is that this administration doesn't feel exactly the same way, that newspaper people have to try and reach a different kind of person, people that they are not friendly with, that they didn't go to college with. In many ways I believe that Vice President Agnew has been expressing a point of view that many people in the Kennedy and Johnson administrations felt very strongly--and held themselves--and I think we have evidence that President Johnson felt that way.

When news of an appointment leaked to the press in the Johnson Administration it killed the appointment and he damned the press for it, I think that I fully agree that the danger to the press is very great because government officials are expressing this, but I am not sure that it's all that much different in character if they're expressing it or if they're just feeling it and manipulating the press in the way they've been able to do for a long time. And what seems to pass without notice is that only recently--I think last week, or the week before--Senator McGovern was in Boston and he too blamed the press for his defeat. We didn't carry that story in The Washington Post and The New York Times on page 1 the way we carried our stories when Clay Whitehead says something like that or when Agnew says something like that, because this is George McGovern talking and maybe it's because he's just smarting from defeat or he's become a little bit irrational in the aftermath of the election. But what he's saying is really not all that different in character from what the Nixon administration officials are saying: "The press did me in, it's the press's fault that this has happened to me." I wonder how Senator McGovern will in good faith stand up on the floor of the Senate when Mr. Whitehead's bill, or any number of Nixon's administration legislative measures, come up in the next four years and defend freedom of the press, and defend the right of the press as a true zealot of the press at that time. I don't think he could in conscience and convincingly, do that.

I'd like to turn to just one other point right now referring to something that Professor Zobel said. I think that the dependence on news sources, as I said, is great now, but has been great before and will always be great if there is to be any true reporting and true provision of information to the press. And I think that Professor Zobel's example was telling for one particular reason. He said that when a government official goes to a reporter, he probably wants to be known, he probably wants to be identified. It's a pretty sorry thing that the public and law professors and the press itself has to assume at this point that it's the officials going to the press rather the press going to the officials.

I CAN SPEAK FROM personal experience. I expect that other journalists here and in the room can speak from experience. It is demonstrably true that when a reporter is trying to find out information from a news source, a governmental source especially in Washington, that the officials will not talk without a protection of their identity and quite often the next day will deny the very same story that they have given to a reporter with documentary evidence the day before. Now it might be nice for a reporter to be able to go into court and embarrass that official once or twice and show that he was really lying when he denied the story or somehow covered his own activity. But I think that the principle is a far greater one than to be spent on the embarassment of a few government officials and I think it's also a far greater principle than to worry about good-guys versus bad-guys. And I have no hesitation whatsoever about saying that if it be a good guy who wants to name of my source, somebody who is defending a point of view or stands for something in a case that I believe in, that I am no more entitled to provide that information when it be a good guy than when it be a bad guy. I think that the only way that reporting can maintain any sort of high standard or respect among the people that reporters have to deal with is for the principle to be absolute.

For the decision to protect sources to be absolute, and without exception under any circumstances--that when the crush comes and somebody in the Watergate case wants to subpoena tapes from The Los Angeles Times, tapes that still exist--it seems to me that it ought to be the publisher of The Los Angeles Times who refuses to turn them over and the publisher who pays the penalty rather than the bureau chief or the reporter involved. I think that the only way that the principle can be preserved is to increase the cost of violating it both for the press and for the government.

Irvin M. Horowitz

assistant national news editor, The New York Times