standers — may have documents in their possession that relate to the ongoing
criminal investigation. The consequences of subjecting this large category of
persons to unannounced police searches are extremely serious. The ex parte
warrant procedure enables the prosecutor to obtain access to privileged documents
that could not be examined if advance notice gave the custodian an opportunity
to object.
The problem here, as Justice Stevens pointed out, is obviously the
relationship of the Stanford Daily decision to the Supreme Court 1967
decision in Warden v. Hayden, of which Justice Abe Fortas propheti-
cally said :
I fear that in gratuitously striking down the "mere evidence" rule * * *
acknowledged as essential to enforce the fourth amendment's prohibition against
general searches, the court today needlessly destroys, root and branch, a basic
part of liberty's heritage.
]My own newspaper, the Los Angeles Times, and many other news-
papers, in light of this reading by Stevens and others, intend to press
for broad legislation undoing as much as possible the effect of the
Stanford Daily decision on the general rights of citizens under the
fourth amendment.
But that decision has a special effect on the press. As Justice Potter
Stewart said in his dissent : "It seems to me self-evident that police
searrhos of newspaper ofTices burden the freedom of the press."
He thought the word "rummage" was fairly accurate. He also used
the word "ransack."
As he pointed out, and I certainly agree, the most serious burden on
the press is :
127
The possibility of disclosure of information received from confidential sources,
or of the identity of sources themselves * * * and it cannot be denied that confiden-
tial information may be exposed to the eyes of police officers who execute a search
warrant by rummaging through the files, cabinets, desks, and wastebaskets of a
newsroom.
I know of no one in the press who disagrees with Justice Ste^yart*s
assessment of the conditions of life after the Stanfard Dally decision.
There is some disagreement on the seriousness of it, but that the prob-
lem exists, there is general agreement.
Many editors read the first amendment as Justice Stewart does : that
it gives the press a specially protected standing in the Constitution.
Other editors are more inclined toward the view currently expressed
by Chief Justice Warren Burger— that the press has few special rights
not generally extended to the people.
Editors of both beliefs, however, are willing to support legislation
givino; the press special protection against search warrants. This kind
of legislative shield could either be part of more general legislation on
the fourth amendment, or could stand on its own.
Senator Bayh's approach, which is to amend the Civil Eights Act,
seems the appropriate vehicle to us. We suggest inclusion in that act of
a section reading more or less as follows :
It shall be unlawful for any person acting under the color of law, without prior
adversary court proceeding, to search any place or seize any things in the posses-
sion, custody, or control of any person engaged in the gathering or dissemination
of news or tlie print or broadcast media unless such search procedure is conducted
pursuant to a warrant issued by a court upon probable cause that such person has
committed or is committing a criminal offense.
Senator Scott. Let me interpose a question at this point. One of our
local papers — I don't know which one it was and it may have been a
columnist — suggested that under the first amendment it starts, of
course, "Congress shall make no law." It does not get into the phrase,
"abridging the freedom of the press."
The columnist expressed concern that once Congress started enacting
laws with regard to the freedom of the press that perhaps they could
grant something that would be pleasant to the press, but they could
grant something that could be unpleasant to the press.
Perhaps it is a field that Congress should not get into. You referred
to this and it brought that to my mind.
Are you concerned at all about Congress invading the constitutional
provision and enacting laws with regard to the press ?
I am not just talking about the press being the broad group.
Mr. Day. I understand that. That, of course, is a subject of intense
interest and controversy in our business. There are those of us who
believe with the Justice Black that when the Constitution saj'S "Con-
gress will make no law" that it means exactly that, "no law."
The problem that we face here is that we have a situation in which
there are, in fact, all sorts of laws affecting the press. I may believe, as
I do, that we would be much better off if we never went Congress.
However, that is in the theoretical world.
In the actual world, we have situations in wliich the Supreme Court
does not read the Constitution as we do.
So, what we are really doing here — or at least many of us are saying
this — is that we believe that none of tliis is the business of Congress, but
the Supreme Court has indicated otherwise, so as a practical matter we
will venture into this area.
128
Senator Scott. I did not want to unduly impose on your testimony,
so go right ahead.
Mr. Day. No, that is a very important question. It is a much debated
point in our business.
My personal belief is this : General legislation on search warrants is
J) referable; but, if necessary, I would support special legislation affect-
ing only the press, and I believe most editors would support such
legislation.
I am not a constitutional lawyer, but our counsel, ]Mr. Sclimidt. tells
us there is ample precedent for asserting that Congress has the power
to write legislation covering not only the Federal system but also the
States as well. This is the course we prefer. It is the States and not the
Federal Government from which we expect most of our problems.
At this point it is appropriate to ask how serious the problem is, after
all. It has been argued that newspapers are taking alann unduly, that
newspapers are again hollering "wolf, wolf." It is argued that most of
these problems about evidence can be worked out informally between
newspapers and the police. It has been argued that as a practical mat-
ter the police will not risk raising the hackles of newspapers by rou-
tinely getting search warrants for evidence that police think news-
papers may have. And it has been argued that guidelines issued by
responsible law enforcement authorities, like the guidelines discussed
by the Attorney General of the United States, will prevent gross abuses
of tlie search warrant against newspapers.
We very much appreciate the concern of the Attorney General — ^but
we may not always be so fortunate to have such a concerned Attorney
General.
And we, too, all remember that in the fable, in the end, there really
was a wolf.
I have talked with police officials. They understand our concerns,
but they make no bones about the fact that they consider the Stanford
Daily clecision an important new certified tool for the prosecution.
They make no bones about the fact that they will use it if necessary
or if useful.
Newspaper executives all over the country are consulting their law-
yers about preventive action. Newspapers are advising reporters to
keep as little confidential material in their desks as possible. News-
paper editors, I am sorry to say, are talking with their lawyers about
ways to keep the most sensitive materials from the eyes of policemen
armed with warrants.
You should know that at a recent meeting on the Stanford Daily
case, Abo Rosenthal, executive editor of the New York Times and a
member of the Freedom of Information Committee of the American
Society of Newspaper Editors, remarked quite seriously that the situ-
ation reminded him of his days as the New York Times' correspondent
in "Warsaw in the 1950's : Ho had to hide his notes, hide the names of his
contacts, and hide all mipublishcd material.
As a practical matter, though, I do not think that it is the main of-
fices of the large metropolitan papers like the Los Angeles Times or
the New York Times that w^U bo the most vulnerable. Eather, the un-
announced visit of the policeman with the warrant is more likely to
fall upon a television station in Providence, R.I., or the Associated
Press bureau in Helena, Mont., or the Berkeley Barb in Berkeley,
129
Calif., or in fact the student newspaper at Stanford University — all
of which, as yon know, have been snbiect to search warrnnts.
Law enforcement in the cities and towns all across the United States
is not always the measured, reasonable, scrujiulous procedure Justice
White in his opinion seemed to imajriue. It is a roujjh and ready proc-
ess, in which the police, understandably enoufjh, use whatever tools
they have at hand, to oret evidence they think or suppose may exist.
justice White said that the discretion of a "neutral" mairistrate
would provide protection enoup-h ao:ainst the danfrer of openinpr news-
paper files to a general search by police, but in fact that is just what
the police did at Stanford : Having been told the unpublished photo-
/n^raphs they were lookino; for weT-e not there, the police, armed with
that warrant, did rifle throu.^rh desks, filino- cabinets, correspondence
and notes in a futile attempt to find them.
INIuch has been made of the effect of the Stanford Daily decision on
police power durintr the press investigation of Watern-n^e. That point
is well taken; how many "neutral" majristrates would have turned
down a search warrant for newspapers demanded by the Nixon Justice
Department?
Waterfrates fortunately are rare. Newspaper investi<rations of local
corruption are commonplace. Newspaper accounts and photo^aphs
of demonstrations, picket lines, public disorders, crimes, are common-
place. Newspapers are one of the accepted means, and one of the most
effective, by which citizens, on promise of confidentiality, uncover
public and private wrongdoing.
The Stanford Daily decision threatens to rip that web of relation-
ships between newspapers and their confidential informants, between
newspapers and the life of their communities, between newspapers
and those fjeneral freedoms of which we j)artake and which we seek
to protect.
We do think the threat is a serious one.
We do think protective le<>:islation is necessar^'^; we shall support
it. This cause unties small newspapers and large newspapers, news-
papers in the leading metropolitan areas and in the small towns,
newspapers of every political persuasion.
We thank you for giving us this opportunity to testify and respect-
fully urge you to take our opinions seriously. They are seriously
intended.
Senator Battt. Thank you. Mr. Day.
FThe newspaper articles and statements submitted by Mr. Day
follow :]
[From the Los Angeles Times, June 2, 1978]
The Knock on Freedom's Door
Over the strong protests of three dissenters, the U.S. Supreme Court has taken
a narrow, orahbed, suspicious view of the First Amendment, and has given
exnrberant. indulgent and trustful approval to a sharp extension of police power.
In upholding: the lejrality Wednesday of a police search of a Stanford Univer-
sity campus newspaper in 1971, the court departed from traditional American
philosophy that police p'ower must he cautiously controlled, and instead wealv-
ened the Fourth Amendment protections against unreasonable search and
seizure.
The police now have the right, armed with a search warrant, to make surprise
raids on offices of news organizations to examine or seize notes, films, documents
or any other information that they believe may be relevant to a criminal inves-
tigation. No more warning is required than a knock on the door.
130
More broadly, the decision extends the authority of the police to invade the
home of a person who is not involved in a crime in any way, on the word of the
police to a magistrate that officers are searching for evidence of someone else's
crime.
The ruling, in effect converts news reporters and editors into agents of law
enforcement, and threatens the confidential relationship between reporters and
editors and their sources of news.
Justice Byron R. White, writing the majority opinion, bru.shed these consid-
erations aside. White, a former deputy U.S. attorney general, said : "There is
no reason to believe . . . that magistrates cannot guard against searches of the
type, scope and intrusiveness that would actually intefere with the timely pub-
lication of a newspaper. Nor. if the requirements of specificity and reasonableness
are properly applied, policed and observed, will there be any occasion or oppor-
tunity for officers to rummage at large in newspaper files . . ."
The opposite is true. Four years ago, detectives ransacked the office of a Los
Angeles radio station, KPFK, for more than eight hours in a futile search for
the original copy of a message from a terrorist group. In the Stanford Daily
incident in 1971, the police rifled through desks, filing cabinets, corre.spondence
and notes in a search for unpublished photographs of a clash between police and
demonstrators at Stanford University Hospital. Last Dec. 27, law-enforcement
officers made surprise raids on four San Francisco-area television stations and
demanded unused film of an altercation between county deputies and residents
of a houseboat community. And, just two months ago. police raided the Associated
Press office in Helena, Mont., in a search for a tape recording of a telephone
conversation between an AP reporter and a man accused of killing a Montana
state highway patrolman.
Justice Potter Stewart, dissenting, made two essential points: (1) a surprise
Bearch of a news organization's office by police disrupts the news operation ;
(2) such a search threatens the disclosure of information received from confid-
ential sources, impairing a journalist's access to information and thus diminish-
ing the public's right to be informed.
The essence of the court's decision, which overrode two lower federal court
rulings, is its authoritarian enhancement of the power of the police, and its
authoritarian bias against the First Amendment — the touchstone of all our
freedoms.
[From the Los Angeles Times, June 2, 1978]
A Different Land
We have been living in a different kind of country since May 31.
On that date, the U.S. Supreme Court, in a 5-3 decision, said the police may
conduct surprise raids on the offices of news organizations in hunting for evi-
dence relevant to a criminal investigation.
But the decision extends far beyond that.
It renders every home and every place of business vulnerable to a surprise
search by the police.
It threatens the confidential relationship between priest and penitent, between
doctor and patient, between lawyer and client.
It sahntafjes the Fourth Amendment, the historic barrier between the massive
power of the state and the individual citizen.
It moeks the First Amendment in taunting language.
It eviscerates the due-process clause of the 14th Amendment.
It comes close to reinstating the evils of the general search warrant in England,
and the writs of assistance in the American colonies, that the Fourth Amend-
ment was intended to abolish.
It opens up the homes of persons innocent of any crime to a sudden knock on
the door and the invasion by police in a search for mere evidence of a crime. As
Associate Justice John Paul Stevens noted in his acute dissent. "Countless law-
abiding citizens — doctors, lawyers, merchants, customers, bystanders — may have
documents in their possession that relate to an ongoing criminal investigation.
The consequences of subjecting this large category of persons to unannounced
police searches are extremely serious. The . . . procedure enables the prosecutor
to obtain access to privileged documents that could not be examined if advance
notice gave the custodian an opportunity to object."
The case before the court re?:ulted when police, armed with a warrant that
authorized an unannounced search, rummaged through the files of the Stanford
131
University student newspaper. The newspaper, filing suit, argue<l that the search
generally violated the Fourth Amendment rights of citizens, and particularly
violated the First Amendment rights of the press because it gave police access
to confidential information.
Two lower federal courts agreed, but Associate Justice Byron R. White sum-
marily dismissed the newspaper's arguments. He said, first, that the warrant
requirement was sufficient protection against an unreasonable search and, second,
that the newspaper was asking the court for a "sweeping revision," of the
Fourth Amendment.
But. in fact, the court made what Stevens said was a "profound change in
Fourth Amendment law" in 1967 by approving the seizure of "testimonial evi-
dence" in a "hot pursuit" of a man later convicted of armed robbery. While As-
sociate Justice Abe Fortas agreed on narrow grounds with the ma.lority opinion,
he objected to the "majority's broad . . . repudiation of the so-called 'mere evi-
dence' rule."
The significance of the 19G7 decision was largely overlooked at the time, but
Fortas issued a prophetic warning : 'I fear that in gratuitously striking down the
'mere evidence' rule . . . acklowledged as essential to enforce the Fourth Amend-
ment's prohibition against general searches, the court today needlessly destroys,
root and branch, a basic part of liberty's heritage."
White conceded that the Fourth Amendment emerged in history largely as a
result of 'conflict between the crown and the press," but we saw no reason to
take this history into account : "AVe decline to reinterpret the (First) Amendment
to impose a general constitutional barrier against warrants to search newspaper
premises . . ."
He argued that the discretion of a "neutral" magistrate would provide suffi-
cient protection against the danger of opening newspaper files to a general search
by police, but the justice was ignoring the real world. "The warrant in the
(Stanford newspaper) case authorized nothing of the sort (a general search),"
White said. Yet the police did rifle through desks, filing cabinets, correspondence
and notes in a futile attempt to find unpublished photograps of a clash between
police and demonstrators at Stanford. And officers spent more than eight hours
rummaging through the office of a Los Angeles radio station four years ago.
The real world is the world of the Watergate break-in and the burglary of the
Beverly Hills office of Daniel Ellsberg's psychiatrist. The real world is the world
where the police, or a political machine, angered by a newspaper investigation of
corruption, can get a search warrant from a compliant judge to make a surprise
raid on a newspaper office.
If this new ruling of the Supreme Court had been in effect a few years ago. the
burglary of the psychiatrist's office would not have been necessary. Can it be
imagined that a "neutral" magistrate would have denied a warrant demanded
Ity the Xixon Justice Department? Can it be imagined that a magistrate would
have denied a warrant to raid the oflBces of newspapers that were investigating
the Watergate conspiracy? Wiretapping is one kind of search, and under the
White theory of the Fourth Amendment, the government during the Nixon years
would have had no difficulty in obtaining approval to wiretap the telephones of
reporters assigned to the Watergate investigation. Even the possibility of this
would have a chilling effect on confidential sources of news.
Associate Justice Potter Stewart, in his dissent, emphasized the "serious bur-
den on a free press imposed by an unannounced police search of a newspaper
office : the possibility of disclosure of information received from confidential
sources or of the identity of the sources themselves."
He said, "It requires no blind leap of faith to understand that a person who
gives information to a journalist only on condition that his identity will not be
revealed will be less likely to give that information if he knows that, despite the
journalist's assurance, his identity may be disclosed." He was talking of the real
world, not White's world of illusion.
White himself seemed to draw back somewhat from the full implications of the
majority opinion. He said, "Of course the Fourth Amendment does not prevent or
advise against legislative or executive efforts to establish constitutional pro-
tections against possible abuses of search-warrant procedure . . ."
Congress has the remedy for the court's radical decision. It can pass legisla-
tion denying authority to federal judges to issue warrants for the search of an
innocent person's home or office for mere evidence of another person's crime. Con-
gress can pass legislation that restores the Fourth Amendment to its historic, pre-
1967 position. Action by Congress can serve as a model for the states to enact
similar legislation to protect the right of people to feel secure from general, indis-
criminate searches by police.
132
It was 11 rears ago that Fortas warned the nation against the emasculation of
the Fourth Amendment. After a decade of gross abuses of power by government
officials, inchiding the attorney general of the United States, that warning,
unheeded then, takes on more significance than ever. For, in White's illusory
world, this decade does not exist.
Stateme>"t to City Council Committee on State and Federal Legislation
(By Clayton Kirkpatrick)
The Supreme Court decision in Zurcher v. Stanford Daily contains threats to a
free and independent press that have not existed before. It offers explicit sanc-
tion to surprise raids on newspaiier offices and unrestricted examination of the
private files and memoranda of reporters and editors.
It has raised the possibility of seizure of file materials that are vital to pub-
lication of the news. Total disruption of the reporting process would follow any
such seizure.
There is a particular vulnerability here that the Court did not even consider- -
the possible destruction of information and processing codes which now are stored
in computers used in preparing news for publication. It would be impossible to
exaggerate the damage that could be done to electronic reporting and editing
devices by raiding investigators.
The majority of the Court appears to rely upon the judgment and restraint of
magistrates to prevent any such extreme disruption. I believe that confidence is
misplaced.
The First Amendment denying Congress the right to enact law abridging
freedom of the press is a demonstration that drafters of the Constitution
were not willing to risk the loss of that freedom through reliance upon the good
judgment and self-restraint of members of Congress, much less magistratas.
The Court now exposes the press to risks that it should not have to endure
absent any showing that a newspaper or its staff are guilty of criminal activity.
Attorney General Bell has specifically denied that he would use the powers that
the Supreme Court has sanctioned. At the same time he has acknowledged that
his actions would not be controlling upon local and state prosecution.
In a matter of such grave consequences to a constitutional freedom we should
not be forced to rely upon a gentleman's agreement from the attorney general
or the varying discretion of hundreds of lesser law enforcement officers.
For these reasons I favor specific, limited legislation to eliminate the risks the
Court has created.
Congress should enact law to exempt news media from the hazards of capricious
search warrants. The use of the subpoena to produce records should be sufficient
and even that should be used sparingly.
Some protection for citizens generally from abuses of search warrants would be
advisable, but there is a difference between the problem of a newspaper and the
problem of a citizen.
There are cases where a surprise search warrant to seek contraband — counter-
feit money, for example — or the fruits or instruments of crime such as stolen
securities or burglar tools is necessary for efficient law enforcement.
Both citizens and newspapers should properly be exempted from general raids
for documentary evidence in private papers. This was the practice before 1967
when a Supreme Court decision opened the door for raids on records and memo-
randa.
To protect against using a news publication as a criminal front, it should be
sufficient to provide that the exemption would be forfeited if there is probable
cause to believe that the publication or its staff were engaged in criminal activity.