I'M SORRY THAT EVEN though we are five and a moderator, that we are still disproportionately represented here, because there are two lawyers, and three newspapermen and nobody here whatever who speaks for the organizations that are in my view the most threatened of all--the television and radio networks. The First Amendment does protect the press-the press doesn't need an FCC license--and I think Professor Dershowitz is right when he says ours is the freest press in the world. I'm sure that is so. It's not the same case with the television networks and while I don't feel competent to speak for them, I hope somebody in the audience does. But I wanted to make the point that as harrassed and as much in difficulty I think the press is, it does triple in spades for the television networks. And let us not, we here who deal in the printed press, forget that for everything we write and edit and for everybody who reads what we write and edit, there are probably at least 25 to 30 people in the country who never see what we write and edit but who do watch network television; that by far, the majority of the people in this country get their news not from what we write, not from what we edit, but from what Cronkite says and what Brinkley says and what Chancellor says and what Reasoner says and what Smith says. So I hope that when the discussion from the floor comes that we get into this area more because to my mind that's a far greater threat than what we in the news business and the print-news business face.

I'D LIKE TO MAKE A few points about some of the things the other panelists have said. In terms of internal restraint, I can answer the point that Tony Lukas made; being on the other end of what he is talking about, I understand what he says and I agree that he is direct to the point, but speaking personally, I would much prefer to be beaten not by The Washington Post, not by CBS, but by The Washington Star-News or the Indianapolis News or the Phoenix Star or the Chicago Tribune. The reason I say that is that I think that Mr. Agnew, in his speeches in '69 and '70, succeeded beyond any of our imaginations. He so succeeded in my opinion in making the general public suspicious of the Eastern elitist establishment press--The Post, The Times, The Wall Street Journal, to a lesser degree, and the networks--that when The Post came out this fall with all that material on Watergate there was a great inclination on the part of a great many people to yawn, to agree with Ron Ziegler, who said, "Well, look where it comes from."

If you will recall when Ziegler commented on all the things that were disclosed in The Washington Post, he almost never addressed himself to the author, to the originator of the material, namely an outfit that is obviously anti-White House, anti-administration and, "Who can believe them?" One of the reasons, I think, that the public did greet that with a yawn was Agnew's very successful implementation of this thesis--that he placed in the minds of an awfully lot of people in this country--that you can't believe those leftist, liberal, pinko people. So therefore I would say, speaking for myself, I would love to get beat by one of those other papers. I don't like to get beat by anybody; Tony is exactly right on that point. Nobody likes to get beat in the business. It's probably juvenile but then we wouldn't be newspapermen if we weren't eternal adolescents, I think. The fact is we hate to get beat, but I would much, much rather be beaten by some organization that isn't lumped with my organization as one which is not to be believed anyway because it has pre-conceived prejudices.

In connection with what Professor Zobel said, I would like to make one point that I don't think he made with sufficient clarity. As a result of the Supreme Court decision in the case of Earl Caldwell and two others, there is no privilege. He talked about shield laws and draft shield laws; that case, at least as I read it, means there is no privilege for a reporter to claim immunity from testifying before a grand jury or anyone else except in those few states that since the decision--and the only one that I know of is my home state of New Jersey--have enacted a shield. All this discussion is about proposed legislation: there are any number of bills that have been drafted in Congress, but as things stand now, there is no such privilege. People have gone to jail, people are in jail for failure to disclose, and given the situation, hereafter people presumably will continue to go to jail. I would agree wholeheartedly with Sandy Ungar that the only way really to crystallize this issue and to get it debated in the way it should be, is that people like Otis Chandler or Punch Sulzberger or Katherine Graham go to jail.

That, I think, would dramatize the issue sufficiently and I think there are people--at least there are at my place and I'm quite sure there are at The Washington Post--who would go to jail to test this principle. That would really dramatize the issue, but not the bureau chief, not the reporter out in the field, but the publisher or the managing editor or somebody at that level whose name is reasonably well know, and whom the administration might just be a little embarrassed to put manacles on and lead off to prison.

Another point in connection with what both Tony Lucas said and what Sandy Ungar said about sources is--and being by far the oldest greaybeard on this table I can talk before Johnson, before Nixon and before Kennedy--that there was an administration in Washington between 1952 and 1960. It was headed by a Republican; his name was Dwight Eisenhower. The reliance on sources in the Eisenhower administration, a Republican administration, was as great then as it was in the Kennedy administration, as it was in the Johnson administration, or as it is in the Nixon administration. Neither more nor less. What's different between the Nixon administration and the Eisenhower administration is the degree to which sources are buttoned up. Everytime a Nixon appointee shows any degree of friendliness with the press, he is either silenced or let go. It is the general belief among the Eastern elitist establishment press that the outgoing Secretary of Commerce, Pete Petersen, was a very able guy. What killed him was that he talked to newspapermen, he liked them and they liked him. He is no longer the Secretary of Commerce.

But the point that I am trying to make is that in an Eisenhower administration, which I would say was more or less neutral, the same reliance on sources, the same sourcing, the same unidentified source kind of leakage went on as went on in the Kennedy and Johnson administrations. I want to reinforce what Sandy said that it is the press that must pay the penalty for being, as he said, as cozy as it was with the White House in those two administrations. There are a lot of us who went to Harvard, who were on The Crimson, who were in Signet or lots of other places with a lot of other people who were in the Kennedy administration--we had made it very chummy. It was like being on Mt. Auburn Street all over again and the result of that of course was that a lot of material came in this way. I will agree too that with the Nixon administration, there are very few reporters I know who went to the University of Southern California. If they did they are in great shape, but unfortunately, there aren't too many of those.

To pursue this point one step further, the degree to which the printed press was relatively ignored in the 1972 campaign by the White House and by the Administration is without parallel in my journalistic career. In the whole 1972 campaign, I didn't get one telephone call from one Republican complaining about biased coverage. That is extraordinary, and the only conclusion I can draw is that they didn't care. They felt they had discredited us to such an extent that nothing we wrote made any difference; on the other hand, we got not too many but enough phone calls from the McGovern people who felt perhaps rightly that they'd been maligned. They cared.

It turned out that it didn't matter whether they cared or not, just as it didn't matter whether Nixon people cared or not. But the Nixon people in my view felt they had neutralized the press to such an extent that it didn't matter if we wrote nothing; and I think at sometime, they might have preferred if we had written nothing because, as it turned out, it didn't matter whether we wrote anything or didn't write anything. But as a journalist, it was extraordinarily difficult for me to deal with the situation in which one of the two candidates really didn't give a damn whether the press existed or didn't exist. This is something that we in the business will have to address ourselves to; I can't conceive of it happening in 1976 because there won't be a sitting President, but that one-sidedness was without parallel, at least in my memory.

Alan M. Dershowitz

I WANT TO COMMENT very briefly on the presentations. I found among the presentations, in some respects, a failure to distinguish sufficiently between manipulation by the government and manipulation by others. For example, Professor Zobel uses the camparison between the prosecutor seeking information in the face of a privilige and the defendant seeking information in the face of a privilege. Sandy Ungar blames McGovern, the losing candidate as much as the people in power. Tony Lukas compares business pressures from within the government pressures from without.

Without making a comparison it reminded me a little bit of Vice President Agnew's statement a few months ago when he characterized some encyclopedia writers who had been critical of the President in an article they had done as gerbils of the wet. Well it seems to me that the lesson of history is clear that one can only be gerbils if one is in government, if one has the power.

Although there is much to fear from people out of government repressing and oppressing, the fear of government doing it is so much greater and so much more legitimate and so much more substantial that the comparisons are simply not apt ones.

The other point I wanted to comment on briefly was particularly Professor Zobel's pooh-poohing privilege and making what I thought were a lot of lawyer's points about the privilege and particularly whose privilege is it. Well that's a detail, that's a technicality: I would agree with Professor Zobel that it should be the privilege of the source, and if the source is willing to be revealed, the newspapermen should not have the privilege--the newspapermen should be obligated, in effect, to say I know that my source does not want me to reveal this either because I've asked him or because that was his understanding in the beginning. If the source wants the information revealed--first of all it is no problem, we can simply reveal this now--but it shouldn't be any privilege. Second of all, about defendants, there really is a distinction it seams to me between the government seeking information and the defendant seeking information--that's a distinction which the law recognizes in many contexts--that the defendant's right to establish a reasonable doubt about his guilt is more to be preferred than government's right to establish its case.

IT'S STILL NOT A black-hat, white-hat principle; the government's prosecution may indeed be the good guys and the defendants may be the bad guys. After all, journalists are not the only people who claim privileges. Lawyers have privileges, doctors have privileges, psychotherapists have privileges, priests have privileges in many jurisdictions. The question therefore is not, as Professor Zobel would put it, why should the journalists, distinguished from any other citizen have the right to disclose, but really who shouldn't the journalists right be regarded as importantly as the rights of the others? Lawyers, in addition to having a privilege, have articulated responsibility that is, we have guidelines as to when we can and when we cannot reach. Journalists unfortunately don't.

I think the courts look unsympathetically at the claim of privilege, in part because there is no canon of ethics by journalists. There is no enforcement mechanism--there are a few kind of unofficial canon of ethics which were filed in the court, but they didn't have the imprimatur of formality that the canon of ethics of the bar association had. So I think that journalists could probably move a long way towerd getting a more sympathetic hearing of their privilege if they would be willing to be critical of misallegations of the privilege. For example, as I think one prominent journalist recently wrote, although he supports the privilege completely, in at least two of the recent cases where people went to jail it was shoddy journalism. A journalist should not say that he has information that somebody has taken a bribe without being willing to come forth and indicate with more substantiality that that bribe has been given. A canon of ethics committee which can enforce affirmative obligations as well as protect sources would probably be a welcomed thing.

Finally it seems that the fear we have today from the government is a two-folder, a pincer fear. As Professor Barnett mentioned proviously, not only is the government seeking more information from people through the grand jury than ever before, from journalists, but it's also willing to give less information. At the same time, the Supreme Court seems to be turning away from a notion of privilege of any kind. We get bills now pending in Congress which seem very likely to be supported and passed which would give the government the power--in effect give the government the privilege, give people like Henry Kissinger and even lower-ranking executives a much greater privilege to refuse to respond to congressional inquiries at the same time it takes it away from the journalists and others.