is left of the Fourth Amendment?

Both the majority of the court and the Department of Justice, in its frieud-
of-the-court brief, tell us not to worry because police will rarely use the power
given them. After all, we are told, police will take the easier route and seek
voluntary cooperation or a subpoena. As a rule, maybe. But in times of conflict,
in times of auger, how benevolently can we hope the police will exercise this
discretion?

We should indeed worry, particularly since the court has now put innocent
parties in a worse position than criminal suspects. If inciiminating evidence
is unlawfully taken from his home, a criminal suspect has a right to prevent
the government from using that evidence against him by having the court
suppress it. But the court has ruled in other cases that innocent third parties
have no standing to suppress evidence illegally seized from them. This means
police have less reason to worry about making illegal searches of the homes
or offices of innocent persons than they do in the case of those suspected of
a crime.

In ISth century England, William Pitt was able to say : '"The poorest man may
in his cottage bid defiance to all the force of the Crown. It must be frail ; its roof
may shake ; the wind may blow through it ; the storms may enter ; the rain may
enter — but the King of England cannot enter ; all his forces dare not cross the
threshold of the ruined tenement !"

Because of the Supreme Court's ruling, we are unable to say the same of our
homes or cars or offices or other property in America today.

Clearly, there is a need not only to worry but to press for legislative action.

MINIMUM STANDARDS SET

Although the miserly interpretation of the Fourth Amendment in the Stanford
Daily case provides little protection from police for innocent parties, the court's
interpretation of constitutional provisions — narrow or broad — sets only minimum
standards. Congress and state legislatures may not l)e able to authorize practices
below these standards, but they certainly can provide greater protection than the
Supreme Court found constittitionally necessary.

In this case. Congress in federal searches and state legislatures in state searches
can quickly moot the Supreme Court ruling by requiring that when policy apply
for warrants to .search homes or offices of innocent parties, magistrates must find
as part of "probable cause" that a subpoena is impractical. Such a provision
would protect eveiTone. ordinary citizen, doctor, law.ver. journalist or whatever.

Instances of such legislative remedying of High Court rulings abound. Recently,
for one example, numerous state legislatures have passed newspaper shield laws
after the Supreme Court held that the First Amendment did not provide a privi-
lege to newspaper reporters who refuse to testify under subpoena about the iden-
tity of their news sources.



70

Tlie House has pending now. in fact, a massive federal penal code revision bill
already passed by the Senate; there appears to be sufficient outrage among the
public over the Supreme Court ruling in Stanford Doily to make it easier to
I)iiss a provision changing that ruling than many other provisions of tlie penal
reform bill. Alternatively, Congress could amend the federal rules of criminal
proc-edure i-elating to searches and seizures, or it could enact sijec-ial legislation
dealing with the sijecific facts of the Stand ford Dailji case.

Whatever legislative method is adopted at tlie federal and state levels, there
is a critical need to overrule the Supreme Court, to protect the innocent again
from government abuse.

Senator B.vyii. Our noxt oroiip of witnesses constitutes a verv dis-
tino-uished panel of newspaper practitioners and executives. Paul Davis
i.>^ president-elect of the Radio-Television News Directors Association.
Mr. William Small is vice president and director of news, Columbia
Broadcastino; Svstem. INIr. Bob Lewis is vice chairman of the Freedom
of Infornuition Comndttee of Siiiina Delta Chi, Washing-ton : he is
{iccomi)anied by Mr. Grant Dillman, Washinoton bureau chief, United
l*ress International.

Mr. Davis?

TESTIMONY OF PAUL DAVIS. VICE PRESIDENT, RADIO TELEVISION

NEWS DIRECTORS ASSOCIATION

]Mr. Davis. Thank you. Senator Bayh.

On behalf of the 1.700 members of the Kadio Television News Di-
rectors Association, I would like to thank you and the other members
of the subcommittee for the op])ortunity to aii])ear today on the matter
of seai'ch warrants directed to the press and other persons not suspected
of a criminal otl'ense.

I am Paul Davis, vice president and president-elect of RTNDA.
The active membershij) of the association is made u]) of news executives
at local stations across the country as well as the netwoi-ks. I am news
director for WCIA-TV, in Champaign, 111. Incidentally, the call let-
ters stand for Central Illinois Area.

RTNDA is gravely concerned about the recent decision of the U.S.
Supreme Court sanctioning the use of search Avarrants to seek criminal
evidence in ncAvsrooms. The existence of this power is inherently
abusive and could produce open vseason on journalists in many com-
munities. The Court's opinion sanctions — as you discussed this morn-
ing — searches for evidence in the hands of anyone — doctors, lawyers,
ministers — any individuals who may have evidence of a crime com-
mitted by someone else. However, most of my remarks will be about
what T am familiar with : the effects of the decision of news-g^athering.

In the 20 years that 1 have spent reporting the news, it seems far too
nnich of my time has been spent in trying, first of all, to get adequate
infoi-mation from law enforcement officials, and, second, in trying to
keep them from getting more than they should from me.

My station receives as many as two sub])enas a week. News depart-
ments have always been ready to cooperate with reasonable requests
from law enforcement agencies wishing to use our work product in
court. It should also be said that most lawyers, judges and police offi-
cers are reasonable, cooperative and understand the expense and effort
it takes on our part.

But it is also true that perhaps half of the subpenas served on the
media have some imperfection. A wrong name or title, the wrong call



71

letters, tlie wroii<^ dates of the event in question or no date at all,
served on the wrong person in the company.

More imj^ortant, they still tend to demand more than we feel they
should get. Too often the sul)i)ena not only lists the items that we can
be compelled to produce — Him, tapes and scripts used on the air — but
also outtakes and other notes we might i)()ssess on the case. If we w^ere
to comply fully with subpenas, we would have to bring to the court
our sourccvs' names, conrulential information we have developed, our
own scribbled opinions, and other information not necessarily relevant
to the case.

If need be, we in Illinois could invoke the limited shield law on the
lx)oks in that State ])roviding protection for oui- soui'ces. That statute
protects our sources in court when we are subpeiuied. It would not pro-
tect our sources from a search warrant.

I mention the number of factual and legal flaws in the subpenas
because there is reason to believe that similar defects will appear in tlie
newly sanctioned search warrants. Those of us who work with many
different police agencies, judges, and lawyers know they are human,
fully capable of error and bad judgment. With a sub))ena this can be
checked; but in the ex parte search warrant situation, the disclosure
of infornuition without any opportunity for tlie journalist to challenge
it, could cause irreparable harm.

Our job routinely is to gather information, often from confidential
sources. Often we are looking at the functions of police, of i)rosecutoi*s
and the courts. In my own news department this past week, we iden-
tified notes and information about five police or investigative units
of the State. Our notes now contain information from inside sources;
two have taken considerable risk in talking with us; all have our
solenm oath of protection, and we were able until ^May 31 to tell them
they were also protected by an Illinois shield law\ But that has
changed with Zirrcher v. Stanford Daily. Some police officers and
])rosecutors may find the sub]iena afr too vulnera})le to challenge when
a search warrant might provide them what they want without
resistance.

In one county in our area, the sheriff, when challenged about the
way he conducted his office and treated prisoners, was quoted as say-
ing, "I am the law." A small weekly newspaper did a courageous in-
vestigative job on the operation of that sheriffs office that resulted in
grand jury indictments. I have little doubt that, wdiile that investiga-
tion was underway, the sheriff could have obtained a search wai'i-ant
avowedly for some othei- matter but for the real ])urpose of looking
through that newspaper's files on tlie investigation about him to see
who had been sources.

I am convinced we will see more newsroom search warrants in the
near future and that — sometimes unintentionally, sometimes inten-
tionally — abuse will come as quickly. Unlike the use of the subpena,
which may be merely the legal means to seek the cooperation of the
news organization, the use of the search warrant is always an un-
friendly act. Since a subpena duces tecum is a geogi'ai)hically broader
command for evidence, it should be to the advantage of the prosecutor
to employ it, rather than a search warrant, if he has a modicmn of
respect for the good faith and professional needs of journalists.



But what of the vindictive district attomej, with access to a less
than neutral judge or magistrate? What if a reporter has been digging
into things they preferred undug? The potential for abuse by a news-
looni search warrant is enormous.

In their opinions in Zurcher^ the Justices in the majority recognized
that substantial i)otential ofr abuse does exist in allowing newsroom
searches. The protection from these abuses, they say, lies in careful
structuring of search warrants to minimize their intrusiveness and in
weighing the police need for the search in question against the damage
it might do to the first amendment values. Although to some those
protections couched in the Court's lofty rhetoric may sound adequate,
Ave do not believe they will have any real effect in application.

To begin with, structuring a warrant to limit the scope of newsroom
searches is almost impossible. Before the search is held, police and
prosecutors will probably have no idea where or in what fomi a news
•organization Icceps certain documents or other searchable items. Inev-
itably, the entire news operation will be opened for inspection. More-
o\'er. in searching for an item or a particular class of items, investi-
gat(n-s will liave to examine every paper they pick up.

"\'\Tio really believes the overzealous, or the angry, or the untrained
searcher would restrain himself from looking at the notes about an
investigation of police that he came upon while looking for something
else specified in his warrant? Even the bcst-intentioncd search will
thus likely reveal many confidential items, some of which would other-
wise be protected by privilege from examination by Government



agents.



The exhortation to magistrates to weigh first amendment concerns
before issuing a warrant will be similarly ineffective. It is analogous
l)ut inferior to the balancing test suggested by ISIr. Justice Powell in
the ropoi-ter's privilege case, Branzhurg v. 11 ayes. Although we con-
timie to believe that the procedures in Branzhurg offer insufficient pro-
teetion for the news-gathering processes, comparing them with the
protections relied on in Ziircher demonstrates how little protection
would actually be afforded the press against searches.

Under Branzhurg. the relative interests of the press and the prose-
cutors are weighed by a court upon a motion to quash a subpena. This
is an adversary proceeding: it allows both sides to present their
positions before any action is taken. By contrast, the balancing pro-
l)osed in Zurchcr will be undertaken by a magistrate in an ex parte
proceediiig, presumably only on the magistrate's own initiative.

Ti-aditionally. our system has relied on the adversary' process to
resolve conflicting claims, and we have distrusted ex parte proceed-
ings. The rostrictions placed on the use of temporarv restraining
onlei-s issued in ex parte proceedings are a good example of this type
of caution.

^Moreover, the balancing here will u-ually be done by magistrates,
not judges. In Shadtctcl- v. Tampa, the Sui)reme Court rules in 1972
that magistrates do not have to be attorneys. In some States — at least
four that we Icnow — magistrates are laymen, a situation that also
existed at the Fedi^ral level until until very recently.

Although the relati\-ely simple components of the probable cause
standard can be learned and applied by laymen, particularly as they



73

develop expertise through experience, the same cannot be said for the
requirement to balance complicated concepts of the fii"st and fourth
amendments, which are probably not familiar to most magistrates.

Moreover, magistrates often deal almost exclusively with police and
prosecutors. This environment is certainly not supportive of consid-
eration of the competing and sensitive constitutional values which are
involved in a warrant request, especially when the magistrate is likely
to raise the issue himself.

Even if the warrant procedures offered some hope of preventing
abuses, after-the-fact enforcement of these controls will have little
effect, INIost importantly, the search will have taken place and the dam-
age done to conlidentiality before any challenge to the search can bo
made.

There are a couple of other matters to be considered : first, the dis-
ruption of the work of a news organization. The court referred to this
mostly as the time lost and nuisance created while the search warrant
is being executed, and that is true. But it could create a more difficult
situation. A^^iat if an audio or video tape that is seized also contains
edited stories and other material not called for by the search warrant?

The tape — possibly of the 11 o'clock news — would be in the hands of
the prosecutor when it was needed for the newscasts.

Another situation has been identified to me by the news director of
KRON-TV in San Francisco, IMitch Farris. That was one of the four
San Francisco news departments served with warrants a few months
ajTo. Suddently without notice, four agents of the district attorney's
ofiico appeared in the newsroom with what has been described as unim-
pressive by at least 25 percents including security g-uards demanding
the intruders leave. It was a dangerous confrontation, another example
of the likelihood of human error in the process of authorizing and
conducting surprise searches.

The Reportei-s Committee for Freedom of the Press has identified,
to the best of our knowledge, 10 instances in the past few years when
warrants were used to search broadcast stations and newspapers, even
before the Zurcher decision. Two that they have additionally identi-
fied have not been confirmed. The Supreme Court's endorsement will
certainly add to the search warrant's popularity wif:h prosecutors.

Obviously, too, the knowledge of our vidnerability to the search
warrant will drv up sources and possibly create hostility to reporters,
as it did to the staff of the Standf ord Daily after their raid in the early
19T0's, when they were very much unwelcome at subsequent news
events involving protests where they might take still another negative.

I might add that it can be very rough attempting to cover student
protests on the campus of the University of Illinois or other campuses
with my station's call letters. They infer from WCIA that _wc might
have so'me indirect pipeline and provide infomiation, when in fact we

were not doing so. . ^ ^ ^ ^^

Turning to the two bills before the subcommittee, although the
specific effect of the Zurcher decision on the constitutionally protected
news-gathering process is what brings RTNDA before the subcom-
mittee^ todav, we support the general approach against third-party
searches taken in the Bayh bill and the original Dole bill, Apart from
the first amendment considerations, we believe that all citizens should



74

be protected ajrainst searches of their homes, offices, and other places
^yhen there exists no snspicion of criminal activity on their part.

Both bills are de.«i^ned to control searches by State officials as well
as Federal a<»:ents. Since the vast majority of criminal inve5ti<>-ations
are undertaken by State and local officials, controlling searches at all
levels is the only way to obtain full enforcement of the constitutional
guarantees.

The Congressional Research Service concluded at the time Congress
was considering the enactment of a statutory reporter's privilege that
the enabling clause of the 14th amendment did give the Congress
ample power to regulate State police practices in order to extend
constitutiomd guarantees.

The major difl'erence between the two bills, as we saw them before
this morning — and we have not seen Senator Dole's provisions —
was that Senator Dole proposed a criminal statute while Senator
Bayli's bill would create a civil right of action. "We support the use
of the civil rights approach and the creation of a ]u-ivate remedy. In
this way, those who have been aggrieved by official conduct can take
direct steps to obtain relief.

RTNDA's counsel advises me that, under the existing provisions of
18 U.S.C. 242, a criminal penalty could be imposed for violations.
An exclusively criminal approach might leave abuses by Federal offi-
cials uni-emedied if prosecution were in the hands of their colleagues.

In both bills — and, again, we have not seen the wording of the
revised Dole bill — there are two occasions when search warrants may
be issued : When there is probable cause to believe that evidence is in
the possession of persons who have committed a crime; and when
there is probable cause to believe that the evidence Avould be moved
or destroyed if subpena procedures were followed.

These procedures do give ample protection to legitimate police con-
cerns. But these exceptions must be carefully written to avoid the
issuance of warrants based on scanty evidentiary showin£rs. In the
case of the first exception, the Dole bill was preferable in this respect.
In the case of the second exception, the Baj'h bill is preferable. We
do not care for the word "may."'

AVe also have a problem with the proposed section 1201 of the Bayh
bill. As now written, it would only protect premises where the person
possessing evidence has a "reasonable expectation of privacy.'' The
extent of the reasonable exjiectation is far from clear, and we believe
this standard would result in confusion and litigation, as it has pro-
voked in other contexts. Accordingly, we suggest you consider that
qualification be removed.

In addition, wo suggest that the subcommittee consider voting an
amendment to the Civil Rights Attorneys' P^ees Award Act of 1070
to allow recovery of attorneys' fees in actions brought under the new
law. I believe Senator Heinz has ])i-o))osed this. This would provide
further inducement for private enforcement.

Ivet me close by saying that RTNDA appreciates all the congres-
sional efioits to obtain relief from newsroom searches, and we strongly
urge the passage of corrective legislation.

Senator Bayii. Thank you very much, Mr. Lewis.

Mr. Small?



75

TESTIMONY OF WILLIAM J. SMALL, SENIOR VICE PRESIDENT AND

DIRECTOR OF NEWS, CBS NEWS

Mr. S:>[ALL. Mr. C'liainnan, in liglit ol' the hour, 1 would subuiil
the entire statement. Would you prefer I just read its conclusion '.

Senator Bayh. You may proceed in any uuinner. I apologize for
the lateness of the hour. I think that just illustrati>s the sin^nilicance
of the issues, the fact that there has been intense discussion of the
problems.

I appreciate the couitesy of all of you gentlemen and your patience
in staying with us this lonii;.

Without objection, your prepared statement will be inserted into
the record.

Mr. Small. We sometimes overuse the phrase ''chillino: effect*' on the
press. Perhaps. But think in terms of your own senatorial or commit-
tee olHces. If Federal law otHcers can pick up a warrant and rummage
through your files, your notes, your effects, don't you think your staffs
might be a little hesitant in dealing: with sensitive matters?

if the Department of Justice introduces guidelines for the use of
Avarrants similar to those now relating to subpenas, fine; but will fu-
ture Attorneys General be as respectful of the first amendment? And
what about the 50 States and all the counties, cities, towns, and villages
that do not expect the Department of Justice to determine their
actions I

We think it important that legislation embrace all 50 States and not
be limited to the Federal establishment. We feel that the legislation
must give us the opportunity to go to court and argue the validity of
any police desire to rummage through our newsrooms.

Further, if your legislation considers an exception when police have
a reason to believe that a news organization may in some way be impli-
cated in a "crime," we ask that you remember that in some cases under
present law the acceptance of certain Government documents — witness
the Pentagon Papers — may be considered a violation of law.

In this city, where no good reporter is around very long before a
good deal of such material crosses his desk, some of it supplied by Mem-
bers of Congress as well as members of the executive branch, that kind
of supposedly stolen material is very common currency.

Not being a lawyer, I am not your best witness on the question of
whether legislation in this ai'ea should be limited to tlie pres.-; or ex-
tended to all citizens. That is for you to resolve. I do insist that protec-
tion is necessary and vital for the press and that the first amendment
does make a distinction, as Justice Potter Stewart noted in his dissent.

Let me just close with this observation. CBS News has overseas
bureaus in 14 countries. In my memory, none has ever been invaded by
police on any premise. Even in Moscow where our rooms may be bugged
and our reporters followed, the police have never yet invaded our
newsroom, with or without a warrant. But now it can happen here.

Thank you very much.

Senator Bayh. Thank you, ^Ir. Small.



42-190—79-



7&

[The prepared statement and biographical sketch submitted by Mr.
Small follows:]

Prepared Statement by William J. Smau.

I am pleased to be here today representing CBS but I am frankly disturbed that
this testimony is at all necessary. Those of us in news have always felt that the
First Amendment meant keeping the ix)lice out of the newsroom. The Supreme
•Court — at least five members thereof — obviously felt differently in the case of
Zurcher v. The Stanford Daily.

I am not a lawyer but I can read the English language. My reading of the First
Amendment makes it clear that it provides protection against unwarranted inva-
sion of editorial ofiices by officers of the state — with or without a warrant. Five
justices read it differently.

The history of freedom, especially in this country, has repeatedly demonstrated
the importance of a robust and fearless press. The prospect of police rummaging
through our notes, films, files, outtakes, desks and trash baskets is hardly con-
ducive to uninhibited journalism.

Until May 31, we did not dream that the nation's highest court would over-
rule the lower courts and conclude that the police could simply walk into our
newsrooms and poke around with impunity. But the Court has so ruled and
so I am here to urge that the Congress legislate back into being the freedom
that the founding fathers sought for the press. I don't like that. You in the
Congress can correct the Court's actions but a future Congress, in a difiierent
atmosphere, can undo your work. The stability of the Bill of Rights seems a
great deal less certain today that it did on May 30.

AiTued with this decision, the police can, on the flimsiest pretest, i>oke their
noses into everything we do. Is there any doubt in anyone's mind that some
neighborhood sheriff, if he or his political allies suspect that they are being in-
vestigated by the press, would welcome that chance to dig around a newsroom