SOMETIME LAST SPRING I turned on my T.V. and found myself watching a Harvard professor, standing on the steps of the Federal courthouse, explaining to the people of Boston his special place in our society. As a scholar, Professor Samuel L. Popkin argued it was his function to search out the truth and pass it on to the rest of us--and to facilitate his performance in this role we should grant him immunity from testifying before the grand jury about the sources of his information.

As Popkin spoke, the legal distinction he was drawing seemed to grow into a social gulf between himself and his television audience. If the young professor was making it clear that he was a scholar, he was making it equally clear that most of the people watching him were not. As Popkin described it, his case was only an exception. After all, it was not everybody's job to search out the truth, only the job of scholars. Popkin would do this job for the rest of the country, and the rest of the country, in return, would make Popkin's clothes, take out his laundry, and grant him immunity from testifying. Popkin's interview was followed by the hockey news. While the rest of Boston became absorbed in the action, Popkin presumably slunk off to divine the truth.

But it remained unclear just how Popkin had come to be a scholar instead of others. Maybe Popkin's position with Harvard entitled him to this special status. Was immunity from testimony before grand juries a fringe benefit of a Harvard assistant professorship? (Had Popkin considered that the privilege might only come with tenure?) I had always thought that every citizen should be encouraged to search out the truth. "Let me do the thinking for us both," Popkin seemed to be saying. I couldn't figure out how I had come to play Bacall to his Bogart.

POPKIN'S DEFENSE presupposed that a clear distinction can be drawn between those who are scholars and those who are mere citizens. His argument is based on a corporatist vision of society, where different people play different roles, and have a correspondingly different legal status. The claims of reporters to a journalists' privilege are analogous in their assumption of a social division of labor which concentrates the investigative function in a distinct class. Popkin and other academics could be the brains of society, and reporters would be the eyes--leaving the rest of us to fight for the positions below society's neck.

The scary thing about the arguments of Popkin and the press is the way their assumption of the continued existence of a definable investigative elite undermines our ideals of an open, democratic society. In an ideal democratic situation, the continuation of a free and open exchange of ideas would be insured by the activities of each citizen as a "searcher" for the truth. To some extent, every citizen would be part scholar and part journalist. When Popkin and the press claim that as investigators they are an "exceptional" occupational group, they threaten to make our failure to achieve these valid democratic goals the foundation of legal policy regarding testimony.

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Justice Byron White, in the majority opinion of the now famous Caldwell case, outlines the legal terms this problem of potential elitism:

Sooner or later it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that the liberty of the press is the right of the lonely pamphleteer who uses carbon paper and a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocompositional methods. Freedom of the press is a fundamental personal right which is not confined to papers and periodicals. It necessarily embraces pamphlets and leaflets... The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.

White then goes on to imagine circumstances under which such a discriminatory distinction would be demanded if the limited nature of the journalist's privilege was to be preserved.

Such a privilege might be claimed by groups that set up newspapers in order to engage in criminal activity and to therefore be insulated from grand jury inquiry, regardless of Fifth Amendment grants of immunity [from prosecution]. It might appear that such "sham" newspapers would be easily distinguishable, yet the First Amendment ordinarily prohibits courts from inquiring into the content of expression, except in cases of obscenity or libel, and protects speech and publication regardless of their motivation, orthodoxy, truthfulness, timeliness, or taste.... By affording a privilege to some organs of communication but not to others, courts would inevitably be discriminating on the basis of content.

The situation White fears seems totally bizarre. Mafia leaders hardly seem the type to enroll their legions of hit-men and bookies as reporters for local Italo-American weeklies. Nevertheless there is a serious core to White's argument. Certainly, a distinction between 'legitimate' and 'illegitimate' newspapers is one to be avoided at all costs. But without such a distinction, there seems to be no way of preventing the unlimited extension of the journalist's privilege. If everyone who occasionally writes a pamphlet qualifies as a journalist, the day might come when it would be nearly impossible to get anyone with important private information to testify against his will. Our current system of criminal justice would be radically reduced in efficiency, possibly to the point of breakdown.

WHEN THE PRESS ARGUES that such a situation is unlikely, it merely expresses an inability to see beyond the status quo. In fact, the arguments of the press requrie the courts to search continually for a definition of "journalist" which would keep the class enjoying the journalist's privilege small--if, as the press claims, its privilege is not to threaten the grand jury system. But the distinction between journalist and non-journalist seems easy to make only by discriminating against the amateur reporter, the spare-time scholar and the inquiring citizen. Do we want to protect the journalists on "established" papers if that means saying that only writers for established papers are journalists?

White's basic arguments apply with double force to Popkin's notion of a scholar's privilege. Even today it is difficult to distinguish a scholar from a non-scholar--after all, most of us have written term papers in our time. And who is to say that any man on the street will not write a book before Popkin, at the customary leisurely scholarly pace, gets around to publishing his findings. In a country of well-educated and supposedly inquiring citizens, Popkin's claim to be an "exception" by virtue of his occupation borders on the offensive.

MOST JOURNALISTS, when defending their claim to immunity from false testimony, seem willing to accept the need for a somewhat discriminatory definition of journalist. But a policy which would deny 'amateur' journalists and leafletters equal access to confidential news sources poses real dangers. There was a time not so long ago when lonely pamphleteers provided information to the student community that was not available from the 'professional' papers and broadcast media. For example, a hastily-constructed civilian and military underground spying network kept tabs on the U.S. air build-up in Southeast Asia, releasing facts and figures which had not been discovered by wage-earning reporters. If the courts sought to prevent the limited journalists' privilege from becoming universal, it is not unthinkable that such semi-professional journalistic efforts, as well as The Black Panther, Hard Times and The Harvard Crimson, would be considered "illegitimate" and denied the privilege of protecting sources.

FURTHERMORE, A LIMITED journalist's privilege could, in effect, limit the practice of muckraking journalism to precisely those media organizations which are most susceptible to economic pressure from Washington. The emerging tactic of the Nixon Administration against the free flow of information is not one of the attacking journalists in the courts, but a policy of wooing the businessmen who head media corporations with promises of economic security. This strategy is most evident in the Whitehead bill for Federally-licensed television stations, where local channels are offered longer five-year licenses in exchange for an end to "ideological plugola." The press is not immune from such Federal pressure. Many hard-pressed dialies would like to see the passage of the so-called Newspaper Preservation Act. Given such pressures, a competitive fringe of "amateur" investigators may be necessary to keep the big media honest.