A comprehensive federal law is the best remedy. However, state legislation is a
desirable reinforcement. Freedom of the press is guaranteed in many state consti-
tutions as well as in the federal constitution.



Statement of Governor James Thompson of Illinois to Illinois Legislature

In ZurcJicr v. Stanford Daily, U.S. (Xo. 76-14M, 5/31/78), the United

States Supreme Court held that nevrspaper offices may be searched pursuant to a
warrant even though no one connected with the newspaper was believed to be in-
volved in a criminal offense. A narrow majority of the Court concluded that the



133

judicial officer before whom tlie warrant is requested could, within the confines of
the First and Fourth Amendments, guard against searches that are so intrusive
as to interfere with the publication of a newspaper. In conclusion, the majority
said :

"Of course, the Fourth Amendment does not prevent or advise against legisla-
tive or executive efforts to establish nonconstitutional protections against possible
abuses of the search warrant procedure, but we decline to reinterpret the Amend-
ment to impose a general constitutional barrier against warrants to search news-
paper premises, to require resort to subpoenas as a general riile. or to demand
prior notice and hearing in connection with the issuance of search warrants."

Immediate action is necessary to demonstrate legislative acceptance of the
Court's invitation to provide the press with an essential element of protection
from state intrusion which, in the Court's view, is not provided by the Constitution
itself. Because this can be accomplished without inhibiting the legitimate needs'
of law enforcement officials, the need for expediency is underscored.

lender Zurcher, the Constitution does not prevent the police from examining the
files, desks and waste baskets of a newspaper reporter in a surprise raid at any
time of the day or night. This unsavory prospect would represent an erosion of one
of our most clierished freedoms. If freedom of the press is to assume the high
plane that our founders intended, we must not allow the media to become an un-
witting participant in police investigations. To do so would subvert the critical
function that the media play as the watchdog of governmental operations.

Unannounced police raids on newspaper offices eould serve to undermine the
ability of the press to acquire, synthesize, and publish the news. Publication
deadlines could be seriously disrupted. Confidential sources could become unco-
operative. The news could be distorted by reporters and editors forced to resort to
their own recollections instead of preserving documents which, while more accu-
rate, would be subject to seizure by the police.

Based upon my own experience as United States Attorney, I am acutely aware
of the role that the media plays in criminal investigations. In many
instances, the media provides the impetus for an investigation into offen.?es
which would otherwise be unknown to appropriate prosecuting officials. To jeo-
pardize that relationship by subjecting the media to the seizure of materials
which, in the discretion of media representatives, are incomplete, unconfirmed,
or possibly inaccurate would be counterproductive.

When law enforcement requirements are such that the need for material in
the possession of the press is overwhelming, the subpoena process represents
the appropriate method for compelling production. The utilization of this avenue
will provide the press with an opportunity to raise valid First Amendment objec-
tions before the judge who issues the subpoena. Ex Parte warrant proceedings
provide no corresponding opportunities.

Only in those rare instances in which there is demonstrable evidence to show
that a media representative is involved in a criminal offense or that important
evidence will be destroyed or removed from the jurisdiction does the need to
search a newipaper office become compelling from a law enforcement prospective.
In all other instances, the use of a subpoena woul be entirely sufficient.

I realize that it is late in the session and that a great deal of important state
business remains unresolved. But the Supreme Court's decision, released on the
last day of May. disclosed a ^lerious gap in the law which we must act to fill with
di.sp?tch. The historical and vital role that the press has played in preserving
the efficacy and integrity of our state's and our nation's democratic institutions
must not be threatened for even one day.

AN ACT to protect the media from State intrusion.

Br if Ptiarted by the People of the State of lUinnis, represented in the General
Assembly:

Section 1. Section 10S-.3 of the Code of Criminal Procedure of 1963, approved
August 14, 1963. is amended to read as follows:

Sec. 108-3. Grounds for Search Warrant, (a) Except as pro%ided in subsection
(h). upon the written compbiint of any person under oath or affirmation which
states facts sufficient to show probable can.se and which particularly describes the
place or person, or both, to be searched and the things to be searclied and the
things to be seized, any judge may issue a search warrant for the seizure of the
following :

(1) Any Instruments, articles or things which have been used in the commis-
sion of. or which may con<:titute evidence of, the offense in connection with
which the warrant is issued.



134

(2) Any person who has been kidnaped in violation of the laws of this State,
or who has been kidnaped in another jurisdiction and is now concealed within
this State, or any human fetus or human corpse.

(b) When the things to be seized are in the possession, custody, or control of
any i>erson known to be engaged in the gathering or dissemination of news for
the print or broadcast media, no judge may issue a search warrant unless the
requirements set forth in subsection (a) are satisfied and there is probable cause
to believe that :

(1) such person has committed or is committing a criminal offense ; or

(2) the things to be seized will be destroyed or removed from the state if the
search warrant is not issued.

Senator Bath. Mr. Landau ?

TESTIMONY 01 JACK LANDAU, NEWS REPORTER, REPORTERS COM-
MITTEE FOR FREEDOM OF THE PRESS, WASHINGTON, D.C.

!Mr. Landau. Thank you, ]Mr. Chairman.

My name is Jack C. Landau. I am a news reporter employed by the
Washington Bureau of the Newhouse Newspapers, and I appear before
you today on behalf of The Reporters Committee for Freedom of the
Press, a legal defense and research fund which concentrates on defend-
ing the first amendment and freedom of information interests of the
news media.

On behalf of our committee, and of the working press we defend in
court and in other ways, we should like to thank you for this opportu-
nity to present our views on proposed legislation to reverse the recent
Supreme Court decision of Zur'cher v, Stanford Daily.

At this time, the Re]:»ortors Committee would like to express its
appreciation to Brona Pinnolis of George Washington University Law
Coiiter and Steven Helle of tlie University of Iowa College of Law
wlio. as interns at the Reporters Committee, helped in the preparation
of tliis testimony.

Because of the short time and the enormous number of bills, and
the fact that they are still coming in, we have not, unfortunately, had
the time to analyze each bill, section-by-section. However, if that is
what you would like, we would be happy to.

I would like to request, Mr. Chairman, if I may, that the appendix
and the testimony of The Reporters Committee be inserted into the
record.

Senator Bayii. Without objection, this material will be inserted into
the record.

^Iv. liAXDAi'. The legislative measures we refer to are :

S. 3164, introduced by Senator Bayh;

S. 3222, introduced by Senator Dole, which replaces his previously
introduced S. 3162 ;

S. 3225, introduced by Senator Heinz;

S. 3258, introduced by Senator Sasser;

S. 3261, introduced by Senator Haskell ;

H.R. 13017, introduced by Representative Quayle;

IT.R. 12952, introduced by Representative Drinan;

H.R. 3376, introduced by Representative Edwards;

H.R. 13168 and H.R. 13169, introduced by Representative Fish;

H.R. 13113, introduced by Representative Jacobs; and

H.R. 13319, introduced % Representative Railsback.



135

Although each of these bills varies somewhat, they basically ad-
dress themselves to two primary questions.

First, some of the bills would restrict the search warrant power of
both Federal and State law enforcement officials. These were mtro-
duced by Senators Bayh, Dole, Iloinz, Haskell, and Sasser; and Rop-
resontat'ives Drinan. Fish, 13160, Quayle, Edwards, Jacobs and Ends-
back. One would only restrict the search warrant power of Federal law
enforcement officials — Fish, 131G8.

Second, some bills would protect the privacy of all citizens not sus-
pected of a crime. These were introduced by Senators Bayh, Dole. Has-
kell and Representatives Quayle, Edwards, Jacobs, and Wish— 13168,
Some of the bills would protect only the privacy interests of the press.
Tliese were introduced by Senators Heinz and Sasser and Kepresenta-
tiA-es Drinan, Fish — 13169, and Railsback.

This legislation was prompted by the Supreme Court's 5-3 ruling
of last May 31st that the first and fourth amendments to the U.S. Con-
stitution do not prohibit local and Federal law enforcement officials
from conducting no-notice surprise search warrant raids on members
of the public and the press — not suspected of involvement in any
crime ; and not suspected of intending to destroy information, should
it be sought by subpena.

All the police must show to a local magistrate, under the decision, is
that there is probable cause to believe that any member of the public
or the press has any type of docum.entary "mere" evidence remotely or
indirectly connected to the commission of any crime.

Armed with the probable cause showing, the police are authorized to
force their way into homes and offices and to inspect all of the contents
in their effort to seek the information specified in the warrant.

There is no question that this decision is a travesty to the privacy
rights secured to every citizen under the fourth amendment — which
prohibts "unreasonable"' searches — and that it is a constitutional out-
rage to the editorial privacy rights of the press to protect confidential
and other unpublished information from inspection and seizure by the
Government.

This decision gives local and Federal law enforcement officials
blanket authorization to raid virtually any home or office in this coun-
tvT — rummaging through files, private correvSpondence, and confiden-
tial infomiation — and the public and the press subjected to this rum-
maging power are helpless to protect documents from the prying eyes
of government.

It is paiticularly damaging to the independence of the news media
because it converts eveiy reporter and photographer into an investiga-
tive aiTn of law enforcement.

It is for these reasons, as this testimony will more fully develop later,
that the reporters committee strongly favors congressional legisla-
tion protecting every member of the public, including the press, from
this type of destructive police power; and furthermore, that we urge
the Congress to make this protection uniform for all citizens by re-
stricting the surprise raiding power of both Federal and State law en-
forcement officials.

We urge this subcommittee to move promptly. Our records show
that since 1970, there have been 15 search warrants issued for informa-
tion in the possession of recognized ncAvs organizations — 13 obtained
by State officials and 2 by the Federal Bureau of Investigation.



: 136

As usual ill government harassment of the press, the first victims
were smaller news organizations ; a student newspaper, an FM station
and an alternative weekly. But within the last year, search warrants
were obtained against tlie four major television stations in the iSan
Francisco area, a major television station in Providence, R.I., and the
Associated Press bureau in Helena, Mont.

We expect that this trend will continue, based on previous experi-
ence. For example, there were no more than a dozen subpenas for con-
fidential news sources served against tlie press from 1960 to 1969. Then
the courts started upholding these subpenas. The result was, that from
1969 to 1978, we know of at least 500 subpenas for confidential and
unpublished information.

Similarly, in the gag rule area. From 1960 to 1970, we don't know of
more than half a dozen gag rules restricting press coverage of judicial
processes. From 1970 to 1978, we have had more than 200.

So, I think it is fair to say that at least from our experience in the
past, and these other two areas, that when the courts give law enforce-
ment officials the power to go after the press, that law enforcement
officials will use that power. That is what the statistics show in the
past.

Therefore, we think it is fair to say that in about 6 months or so,
when word of this decision filters down to local prosecutors, magis-
trates and police, we will begin to see an increase in surprise search
warrant raids against both the public and press.

But even if we do not see dozens of raids against news organiza-
tions, we would still urge Congress to act because no journalist or news
organization will feel secure living under the threat of a possible raid
anytime a newspaper or broadcast station is working on any story
involving crime.

Furthermore, as other editors and reporters have pointed out, just
one raid at the right time could do incalculable damage to the public's
right to know the news. If the New York Times had been raided, the
"Pentagon Papers" might never have been published; and if the
Washington Post had been raided and its Watergate files seized early
in its investigation, the entire Watergate story and the resignation of
President Nixon might never have occurred.

In the course of your deliberation on whether to move promptly, you
have at your disposal the opinion of virtually every major profes-
sional press association, many prominent individual journalists, and
dozens of newspaper editorials.

These news media persons and organizations are unanimous in their
condemnation of the police raid decision, not only based on their objec-
tive evaluation of the danger to confidential sources, but also based on
their subjective evaluation of the danger to our whole constitutional
system of values.

Perhaps Howard K. Smith, a member of this committee, put it
best when he said :

When I was a new young reporter at tJie United Press in Nazi Berlin * * *
there was a knock at the door * * * and 15 Gestapo men barged past me, began
opening every desk and studying every piece of paper they could find * * * Six
hours later they left * * * i can remember thanking God this couldn't happen
in America. Well, now it can. It is the worst, most dangerous ruling the Court
has made in memory * * *.



137

If you were to tell someone that you had just visited a country
where^ police ha\e the authority to conduct surprise searches of inno-
cent news ori;anizations and innocent homeowners, and rifle through
their files and correspondence, they would probably say that vou had
just come back from the Soviet I^nion or China. That is why
1 suugest that this decision symbolizes a police power ;ilien to our
whoiTconcept of a free society. Modifications or limitations on this
ruling are not enough. It must be excised from our law, root and

branch. i • • a.i

In the list of amici cuiiae in the petition for rehearing in the

Stanford Dalhj case, it is demonstrated that we are not alone in our

sentiments.

Mr. Chairman, I would like this entered into the record it possible.
Senator Bayii. Without objection, this material will be inserted

into the record.
Mr. Laxdau. I will first discuss Entich v. Carnngton to Stanford

Daily \. Ziu'cher.

In the past when this committee has testified, we have limited our
suggestions to pending legislation affecting the interests of the press
only. While we realize that it might be politically simpler for us to
ask the Congress to limit the search warrant powers of police in regard
only to the raiding of news offices, the Keporters Committee has de-
cided that this privacy protection is important for all the public, not
just the press.

We have come to this conclusion based on the history of the fourth
amendment which was passed to guard against this very type of raid-
ing power upheld by the Suprenie Court in the Stanford Daily case.

The "List of Infringements and Violations of Rights" drawn up
by the Boston Town Meeting in late 1772 stated that ''our houses and
even our bed diambers are exposed to be ransacked, our boxes, chests
and trunks broke open, ravaged and plundered * * *" by officers of
the Crown using general warrants. I refer here to Warden v. Haydev,
387 U.S. 29-1, 315, 1967, Douglas, J., dissenting, quoting Rutland, The
Bill of Rights 25, 1955.

Patrick Henry, in urging limitations on the search warrant power,
stated that '"officers [may, unless subject to restriction] go into your
cellars and rooms, and search, ransack, and measure, everything you
eat, drink and wear. They ought to be restrained within proper
bounds." I refer here to Id.'SlO. quoting -3 Elliott's Debates pages 448,
449.

Judge Leonard Hand, in reviewing the philosophy of the fourth
amendment, stated: "[I]t is only fair to observe that the real evil
aimed at by the fourth amendment is the search itself, that invasion
of a man's privacy which consists in rummaging about among his ef-
fects to secure evidence * * * ." I refer here to United States v. Poller^
43 F. 2d 911, 914, 2d Cir. 1930.

And Judge Hand was only echoing the language of an 1886 Supreme
Court decision, Boyd v. United States^ in which the Court unanimously
condemned any contravention of the fourth amendment ])rinciple of
an "indefeasible right of personal security, personal liberty, and pri-
vate property, where that right has never been forfeited by [the] con-
viction of some public offense." I refer to Boyd v. United States, 6 S.Ct.
524, 532, 1886.



138

In casting this fourth amendment principle as a "sacred right," the
Boyd Court relied heavily on the reasoning of Lord Camden in the
landmark English case, Entick v. Carrington and Three Other King's
Messengers. In 1765, Lord Camden voided a warrant for personal
papers and enunciated the rationale that was later to serve as the
foundation for our own fourth amendment. Lord Camden voiced the
fear shared by the esteemed Lord Coke that any right of the govern-
ment to search through personal papers and effects to discover evidence
confounded the innocent with the guilty, and was perhaps "more perni-
cious to the innocent than useful to the public." I refer here to Id. at
531-32, quoting from Entick v. Carrington and Three Other Kings
Messengers, 1765, 19 How. St. Tr. 1029.

Despite the strong antipathy in England and the United States to
the rummaging power, there Vv'as one exception to the rule. This excep-
tion permitted search warrants to issue to seize the fruits and instru-
mentalities of a crime or to seize contraband. That is the way matters
stood for 178 years until May 1967 when the Supreme Court \n Warden
V. Hayden., reversed the teachings of Lord Camden, the Constitutional
Convention and virtually ever^y Supreme Court case until that time.
It ruled that warrants could issue for the seizure of mere evidence
from innocent third parties not themselves suspected of any involve-
ment in the crime.

Because the items seized in Warden v. Hayden were seized incident
to a lawful arrest and because 95 percent of the search Avarrants are
for drugs or other instruments of crime, it was not until Zurcher v.
Stanford Da'dy that the Supreme Court had the occasion to deal direct-
ly with the question of a search warrant for evidence against a citizen,
in this case a newspaper, not suspected of a crime and not in possession
of any fruits of a crime. But certainly the three dissenters in Warden
V. Hayden saw the danger. For as Mr. Justice Fortas said on behalf
of himself and Chief Justice Warren : "The Court today needlessly
destroys root and branch, a basic part of liberty's heritage." This is
from Warden v. Hayden^ supra, at 312, Fortas, J., dissenting.

The destruction of this heritage is particularly damaging to the
press, a fact that was clear to Lord Camden and to the colonial patriots
as it is to us today. It should be remembered that the original limita-
tions placed on search warrants in England in Entick v. Carrington
stem from efforts of the Crown to bring libel charges against Govern-
ment critics whose papers were seized in raids authorized for the dis-
covery of evidence. If during such raids the agents found any books
to be libelous against the church or state, [they were] to seize them and
carry them before the proper magistrate. I refer here to Id. at 313,
Douglas, J., dissenting, quoting from Entick v. Carrington, 1765, 19
How. St. Tr. 1029.

Lord Camden strongly criticized the trespass that resulted :

Papers are the owner's good and chattels ; they are his dearest property, and
are so far from enduring a seizure, that they will hardly bear an inspection ; and
though the eye cannot by the laws of England be guilty of trespass, yet where
private papers are removed and carried away the secret nature of those goods
will be an aggravation of the trespass, and demand more considerable damages
in that respect. Where is the written law that gives any magistrate such a power?
I can safely answer, there is none ; and therefore it is too much for us, without
such authority, to pronounce a practice legal which would be subversive of all
the comforts of society.



139

I would refer you to Boyd v. United Stafra, supra^ at 531 quoting
Entlck V. Carrlngton, 17G5, 19 How. St. Tr. 1029.

Entich V. Camngton and the etl'ort of the Crown to prosecute Jolin
Wilkes for seditious libel were well known to the constitutional conven-
tion. The warrant against AVilkes, signed by Lord Halifax, authorized
the King's messenger to search the offices of "authors, printers and
publishers" and to "seize * * * their papers." See Standford v. TexaSj
379 U.S. 476, 483, 1965, quoting Lasson, development of the fourth
amendment 43.

The Court of Common Pleas, in awarding Wilkes damages, said that
this was "a ridiculous warrant against the whole English nation" and
every American statesman during our revolutionary and formative
jDcriod as a nation was undoubtedly familiar with this monument of
English freedom and considered it the ultimate expression of con-
stitutional law. I refer here to Standford v. Texas^ 379 U.S. 476, 483,
1965; and Boyd v. United /States, supra, at 530.

"\yiien the framers of the Constitution met and looked over the his-
toiy of the colonies in the previous 40 years, they saw two institutional
groups who had been continually subjected to persecution by the
Crown: the religious dissenters and the colonial printers. For the
religious dissenters, they constructed a protection against the estab-
lishment of a state religion. For the colonial printers, they established
freedom of the press in the first amendment and protection against the
type of rummaging raids to which the colonial pi'int-ers had been
sul3Jected by passing the first amendment.

As Mr. Justice White points out in Stanford Daily : "The struggle
from which the fourth amendment emerged as largely a history of
conflict between the Crown and the press." I am quoting here from 46
U.S.L.W. 4546, 4450, U.S. May 31, 1978, Nos. 76-1484 and 76-1600,
quoting from Stanford v. Texas, 379 U.S. 476, 482, 1965.

It does, therefore, seem somewhat ironic that the fourth amendment
was passed to guarantee that law enforcement officials would not invade
the offices of Colonial Printers searching their papers for evidence of
crime; and that 189 years later, the Supreme Court has permitted the
police to do precisely what the fourth amendment was passed to
prevent.

With regard to Stanford Daily v. Zurcher, we reject the theories put
forth in Stanford Daily that there is any effective way to limit the
damage suffered by a news organization subjected to no-notice surprise
searches for a number of reasons.

First, politically appointed or elected magistrates are not an ade-
quate safeguard for the first amendment interests of press organiza-
tions whose historical function is to expose the corruption and misdeeds
of the very political structure of which the local magistrate is an in-