tegral part.
Local magistrates, who issue search warrants, are elected or ap-
pointed within the political processes of the local party structure. Fre-
quently, they run on the same tickets as the prosecutor or the police
commissioner who is seeking the warrant. Therefore, news media
organizations believe it was completely erroneous for tlie majority of
the Court to conclude that these politically appointed or elected magis-
trates are going to serve as an effective guardian of the very news
organizations who may be their severest critics. I refer here to Id. at
4551.
42-190 — 79 10
140
Second, a number of the most celebrated confidentiality cases have
involved news organizations or news reporters who have refused to
disclose confidential information indicating that court orders have
been broken. In a number of cases, reporters have been held in con-
tempt and have gone to jail rather than comply with these subpenas. As
criminal contempt is itself a crime against the court, it is unrealistic
to assume that a local judge — when a crime has been committed against
his own authority — is going to serve as an effective guardian of the
privacy of newsrooms.
Third, every desk in every newsroom contains confidential informa-
tion of some nature. Rarely does a reporter conduct an interview with
anyone wliere some statements or 1>ackground information is not given
to the reporter in conlidcncc or for use as a source, or not attributable
to the source.
Of course, the cases we hear about are the cases where confidential
sources have produced evidenr^e of serious crime or have provided a
newspaper witli confidential Government documents, and the possi-
l)ility of disclosure would probably stop major information of this sort
from reaching the public in particular cases.
Bnt wliat T am trving to point out is that the fabric of journalism on
a daily basis is so intertwined with obtaining information of a confi-
dential nature that permitting police to search through a newsroom
jeopardizes the relationsliip of every reporter in the newsroom and
virtually every person he lias talked to: and so undermines tlie inde-
pendence and credibility of the press that it would be virtually im-
possible to operate effectively.
Because newspapers frequently receive information which govern-
ment may claim is itself a crime and because newsrooms — unlike other
premises — contain dozens of separate privacy interests based on the
notebooks, files and desks of every reporter, some attention should be
given to the peculiar problems of the news media.
I turn now to news collection crimes. One problem which is common
to most of the bills is the exception for search warrants if the person
h?s committed or is committing a crime.
The government claimed, during the Pentagon Papers liticration,
that both the New York Times and its reporter. Neil Sheehan, had
committed a crime by merely receiving and possessing the Pentagon
Papers. Here I refer to the case of Neio York Times Co. v. United
Sfote.9A0^V.S.7-i^A97l.^
A rertorter in California was prosecuted for the crime of receiving
a list of undercover agents from local police officials. I refer here to
the case of People v. KunMn, 9 Cal. M 24.5, 107 Cal. Rptr. 184, 1973.^
A reporter in Vermont was accused of committing a crime by receiv-
incr a copv of a confidential letter to the Governor. Dr. Ellsberof was
accused of obstructing the Government's rijiht to conduct the dissemi-
nation of its own information by giving the Pentagon Papers to at
least four newspapers. T refer here to the case of United States v. EIIs-
herg, Crim. No. 937,3, C. D. Cal.. 1971.
Therefore, we suggest that if the Congress is cfoing to follow the
approach taken by every bill except the Jacobs bill, then we must have
the same type of protection which the Senate inserted in S. 1437, Dro-
hibiting search warrants against news organizations involved in a
141
crime if the crime is the otherwise lawful receipt of information in-
tended for dissemination to the public. I refer here to Senate bill l-lo7,
sections 1301, 1344, 1733, introduced in 1977.
With rerrard to newsroom rummaging, this prol)lem involves the
power to rummage through the entire newsroom — not only through
the desk of tlie reporter who is alleged to have the information sought
but through the desks of every other reporter and editor in the process
of looking.
This is what happened in Stanford Daily and several other cases.
For tliis reference see generally Note, Search and Seizure of the
Media : A statutory, fourth amendment and first amendment analysis,
28 Stan. L. Pvev. 957, 197(5.
Senator Scott. ]Mr. Chairman, if I might interrupt right there,
I have a copy of the Wall Street Journal. The editor is concerned about
the Stanford case, just as you are, but he says this :
Xewspai>ers are on the firmest ground, we feel, when their rights are the rights
enjoyed by all the people." Then toward the end of the editorial he says, "If the
Stanford case does lead to a rash of newspapers searches, we suspect the court
will iiave to look at the fourth amendment again. It could strengthen the privacy
rights of everyone against evidence gathering raids without having to do news-
papers a special favor.
There does seem to be, as Mr. Day suggested, some differences of
opinion. It is not just Senator Scott ])eing concerned about this. There
seems to be some diiferences within the media people with regard to
this. Certainly, I think we would agree that the Wall Street Journal
is a respectable paper. There is a ditlerence of opinion.
Mr. Laxdai. We agree that the legislation should cover everyone.
I was trying to point out two particular problems, one of which de-
veloped in the past legislation because, as I say, all the bills have ex-
ceptions in tliem and say that if the person is committing a crime or
has committed a crime, then the warrants shall issue. But we are faced
with a peculiar situation of having papers in the past and been threat-
ened and actually prosecuted for the crime of just receiving Govern-
ment information. That is the problem we w^ould like to deal with just
as we dealt with it in the Federal Criminal Code.
Senator Scott. Are you suggesting that if a private citizen received
information that he should not be protected but if newspapers receive
identical information that they should be protected?
Are you suggesting a difference here?
Senator Bayh. Excuse me. Senator Scott.
First of all, I share what I sense is your concern, Senator Scott, and
that of the Wall Street Journal. I think the press is on stronger ground
if it is seeking protection for all innocent third parties.
Mr. Landau, am 1 fair in suggesting that in those instances where
the individual is a press person involved the business of news gathering
and dissemination that, in essence, the information you have for the
pur|)ose of dissemination should not constitute a ci'ime. Is that right?
]\fr. T^AXDAU. Yes. that is the problem.
Senator Bayh. In situations where the crime in question is the simple
possession of information, the press faces particular problems. We are
not talkinir about robbinjr a bank.
Excuse me, go ahead.
142
]Mr. Laxdau. "Wo went through this in 1937. We were faced with th&
same problems.
Now I am talking about the rummaging problem. This demands,
perhaps, somewhat of a more imaginative solution. One of the prob-
lems is that the conventional commercial establishment or home has a
right of privacy which is generally that of a homeowner who uses all
the rooms and has a right to go into all the rooms. One of the problems
is what do you do in a news office when j'ou raid a news office and you
have 25 desks and different filing cabinets, and different reporters and
editors who have private information in there ? Does the abilit}' to raid
one desk and seek information from one reporter give you the right to
go through the whole place ?
We cannot give j'ou a real answer to it except that there are cases
involving boarding houses. The courts have held that there are sev-
erable and protectible privacy interests within one building and even
on one floor of the building. For example, police cannot search all the
rooms in a rooming house because the owner of the rooming house or
one of the roomers is suspected of having evidence of a crime. Each
roomer is entitled to privacy. I refer here to Watrlen v. Ilayden, 387
U.S. 294, 325, 1967, Douglas, J., dissenting.
In a very real sense, the newsroom presents the same problem where
each desk or reporter's filing cabinet is like an adjacent room in a room-
ing house, a separate and protectible zone of privacy.
Therefore, we suggest that, even if there are circumstances under
these bills where raids may be conducted against news organizations,
the legislation restrict the search power to the particular desk or file
cabinet of the particular news employee suspected of having the in-
formation, and that the power to search one desk should not be in the
power to search an entire newsroom.
The examples which comes to mind would be a case where a news
reporter is suspected, separate and apart from his reporting, of being
in possession of illegal heroin. Under any of the bills, a search war-
rant could issue. But certainly one reporter's vidnerability to a search
warrant for this type of crime should not subject the entire news
organization to rummaging by local police any more than the posses-
sion of heroin by one tenant of a rooming house would subject the
other tenants to having police rummage through their personal
possessions.
Looking toAvard legislative solutions, and having said all this, the
question remains as to which of these approaches appears to most ade-
quately balance the legitimate needs of law enforcement with the legit-
imate rights of privacy of the public and the press. Here we are faced
with an attempt to blend a number of different concepts and miscon-
ceptions which have developed over the years. Is the information
sought "fruits and instrumentalities" of a crime — a rule that has come
down from the English common-law theory that persons who commit
crimes forfeit common-law property interests in any items used in the
crime? For this, see, for example, id. at 310-11, Fortas. J., dissenting;
Boyd v. Uiv'Ud Sfafes. IIG U.S. 616, 623-24, 1886; Unifed States v.
KirschenUatt, 16 F. 2d 202, 203, 51 A.L.E., 2d Cir. 1926, L. Hand, J.
Is the search incident to a lawful arrest separate and apart from
the search conducted under the search warrant? Is the restriction on
the issuance of search warrants — tlie first guarantee of the fourth
143
amendment — identical to or different from the additional p:iiarantee
that the search when conducted cannot be "unreasonable?" Is there a
presumption, underlying the fruits and instrumentalities doctrine,
that l^ocause it is the instrumentality of crime, it is likely to be
destroyed — a consideration of recent vinta<>:o ?
Certainly in view of these varying philosophies, it miirht lie best to
look at the' end result sousfht today rather than the varyiii"; justifica-
tions which have developed as historical undoriiinninffs for the rule.
Viewed in that light, the main goal would seem to be to preserve
the evidence whether it be mere evidence, fruits and instrumentalities
of a crime, contraband, weapons or whatever.
If that is the goal — to preserve evidence in order to aid the police
in seeking to solve crimes — then certainly the most sensible solution
might be simply to ban all search warrants except in those cases where
police have probable cause to believe that the information would be
destroyed if sought by subpena.
By fashioning a rule designed for one goal only — to preserve the
evidence^ — law enforcement officers would be obligated to provide an
affidavit justifying their raiding power on the grounds that any other
alternative would result in a loss of the evidence.
If, however, the Congress follows its present inclinations to pass
legislation permitting search warrants where there is evidence that
tlie person is involved in a crime or that the items to be seized are fruits
and instrumentalities of a crime, then we would suggest the two modi-
fications I alluded to earlier :
First, that the warrant cannot issue against a recognized member of
the press if the crime is related to the otherwise lawful receipt of infor-
mation intended to be disseminated to the public; and
Second, if the warrant does issue for such items as illegal heroin in
the possession of a reporter, that the police must be restricted to the
desk and filing cabinet of tlie particular reporter or editor and they
may not rummage through the desks of other reporters and editors.
I turn now to the factual background of the Federal preemption. It
seems clear that, because the Supreme Court has given Federal and
State police nationwide the power to conduct surprise searches of inno-
cent citizens, the Congress must fashion a nationwide solution.
It makes no sense, either practically or constitutionally, to limit only
the search warrant powers of Federal magistrates and Federal law
enforcement officers.
First, as the history of searches since 1970 shows, the great majority
are conducted by local officials. Out of 15 search warrants for news
organizations, only 2 were conducted by Federal officials.
Second, if the Congress Avere to limit only Federal search warrant
powers, then an innocent citizen in Indianapolis would be protected
from being searched by the FBI, but not by the Indianapolis police.
Third, limiting Federal search warrants, while pemiitting State
search warrants in the same circumstances, vv'ould only encourage col-
lusion between tlie FBI and State police— the very type of collusion
we have evidence of in California as a way to avoid that State's shield
law.
The fourth amendment is a guarantee for all citizens. A citizen's
constitutional right to privacy should not depend on the happen-
stance of whether the search is conducted by Federal officials or State
officials.
144
Fourth, the press has a special interest in being assured that the
coverage will apply to the States.
In line with Mr. Justice White's suggestion in Branzburg, and I
refer here to Branzburg v. Hayts^ 408 U.S. GG7, 706, 1972, we now
have 26 States with shield laws that, in one form or another, prohibit
newspersons from being forced to divulge confidential information
sought by subpena.
These shield laws are now useless because, while they protect confi-
dential information sought by subpenas, they do not protect confiden-
tial information seized by search warrant — franklj- because no one
in the press ever conceived of a situation where police could march
into newsrooms and seize files.
Limiting Federal search warrant powers, while permitting State
officials to conduct surprise searches, can only encourage other States
to follow the lead of California officials who have effectively voided
that State's shield law by the simple expedient of the no-notice search.
Turning now to the constitutional background of the Federal pre-
emption, we believe the Congress clearly has the power to protect the
privacy of all citizens by limiting the power of Federal and State law
enforcement officials to conduct searches of homes and offices under
two separate and independent constitutional powers — section 5 of the
14th amendment and the commerce clause.
First, the 14th amendment. Section 5 of the 14th amendment grants
to the Congress the "'power to enforce, by appropriate legislation, the
provisions" of the 14th amendment. As you know, one of the provisions
of the 14th amendment is the due process clause, which the Supreme
Court has said incorporates the protections of the first and fourth
amendments. I refer here to, for example. Near v. State ex rel. OJ^on^
288 U.S. 697, 707, 1981 ; and ^Voli v. Colorado, 388 U.S. 25. 27-28, 1949.
As this subcommittee knows. Congress utilized section 5 of the 14th
amendment when it passed the Voting Eights Act of 1964. That act
prohibited certain States from usino- literacy tests. Conerress deter-
mined that the reserved powers of the States to impose literacy tests
were utilized in such a way as to restrict the federally guaranteed
right to vote.
The States answered tlmt Congress lacked the authority under sec-
tion 5 to implement a civil liberty — such as the right to vote.
The T^S. Supi'eme Court, in liatzmharh v. Morgav, upheld the
congressional power ns a proper exercise of Congress risfht to protect
the constitutional guarantee. I 7-efer here to 384 U.S. 641, 19G6.
Therefore, we would argue that in passing legislation to protect
privacy in the States, Congress would he doing no more than exercis-
ing the very same powers under section 5 that it exercised when it
protected the right to vote.
Certainly, the Justice Department and the State attorneys general
cannot be heard to argue that the right to cast a ballot is more impor-
tant than the right to be secure in one's home or office from unreason-
able searches. In fact, one might argue, as Justice Brandeis has argued,
that W\ii fourth amendment is the most fundamental of all protections
because it is "the right to be left alone" by Government. I refer to
Ohmtead v. United ,'^tates, 227 U.S. 438,^ 478, 1928, Brandeis, J.,
dissenting.
Second, the coiiunercc clause. This clause invests in the Congress
145
tlie power to "regulate commerce * * * among tlie several States."
Using this power, Congress lias already enacted broad privacy pro-
tections for homes and oilices against searches by wiretaps ana otlier
forms of electronic eavesdropping.
This nationwide privacy law was contained in the Omnibus Crime
Control Act of 1968 Avhicii prohibits Federal and State officials from
wiretapping the premises of an establishment, or seeking information
relating to an establishment, "the operation of which allccts interstate
and foreign commerce.'' i refer here to litle 18, U.S.C, section 2oli{i)
(b)(iv).
Nor may any device be used which the eavesdropper has reason
to believe was sent through the mail or interstate conmierce. I refer
here to Id. at section 2511(1) (^b) (lii).
Only mider precise conditions established in the act by Congress is
intrusion by search warrant permitted.
In short, the Congress has i^rotected the privacy of virtually every
business establishment and millions of individual residences from
unreasonable searches by wiretaps and eavesdropping devices. There-
fore, it clearly has the power to protect these same homes and busi-
nesses from unreasonable searches Dy x^olice.
Furthermore, the act provides for civil and criminal penalties
against Federal and State otiicials who conduct eavesdropping searches
in violation of the congressionally prescribed standards.
Of coiu-se, when we come to the press, the question becomes much
simpler because every newspaper, broadcast station, book and maga-
zine publisher — and their employees — are involved in commerce. News-
papers, magazines, and books travel across State lines as do broadcast
signals.
In conclusion, it is quite clear that Congress has the constitutional
power to protect the homes and offices of ali citizens from surprise
raids by I^'ederal or State law enforcement officers under its power to
implement the protections of the fourth amendment and under its
jjower to protect persons and premises in any way related to interstate
cormnerce.
Thank you very much,
[The materials submitted by Mr. Landau follow :]
Appendix to Testimony of the Reporters Committee, July 13, 1978
SUMMARIES of house AND SENATE BILLS TO LIMIT SEARCH WARRANT RAIDS ON
NEWS ORGANIZATIONS
1. Bayh Bill. — Limits Federal and State search warrants against all persons
not suspected of a crime.
AVould prohibit federal and state search warrants against any "premises'' in
which tlie person "has a reasonable expectation of privacy,'' except if there is a
finding of '"probable cause" that the person "may be" involved "in a crime under
investigation" ; or that the evidence would be destroyed if a subpoena was
served.
Method. — By amendment to the Civil Rights Act of 1871 with a provision for
damage suits in state or federal court.
Bill number. — S. 3164, introduced by Sen. Bayh (D.-Ind.) and eight cospousors.
2. Dole Bill. — Limits Federal and State search warrants against all persons
not suspected of a crime.
Would prohibit federal and state search warrants against "any person." ex-
cept (a) If there is a finding of "probable cause'' that the person has committed
or is committing a crime ; or, (b) If there is a finding of "reasonable cause" that
prior notice may result in destruction of the evidence.
146
Method. — An act authorizing criminal fines and/or a jail sentence of one year
for violation.
Bill number. — S. 3222, introduced by Sen. Dole (R.-Kan.), no cosponsors.
3. Heinz Bill. — Limits Federal and State search warrants against members of
the press not suspected of a crime.
Would prohibit Federal and State search warrants against members of the
press, except — If there is a finding of "probable cause" that the reporter or news
organization has committed or is committing a crime.
Method. — By amendment to the Civil Rights Act of 1964, with a provision for
both civil and criminal penalties and suits allowed in Federal and State court.
Bill number. — S. 3225, introduced by Sen. Heinz (R.-Pa.), no cosponsors.
4- Haskell Bill. — Limits Federal and State search warrants against all per-
sons not suspected of a crime.
Would prohibit Federal and State search warrants against all persons, except
(a) If there is a finding of "rea.sonable cause'' that the person is involved in the
crime, or (b) If there is a finding of reasonable cause that the person is in po.s-
ses.sion of the evidence and it would be destroyed unless the warrant is executed.
Method. — By limiting the scope of Federal Rule of Criminal Procedure 41 ;
authorizes criminal and civil penalties in both State and Federal court.
Bill number. — S. 3261, introduced by Sen. Haskell (D.-Colo.), no cosponsors.
5. Sasser Bill. — Limits Federal and State search warrants again.st members of
the press not suspected of a crime.
Would prohibit Federal and State search warrants against members of the
press except (a) After notice and an opportunity to be heard, there is a '"prob-
able cause" finding that the member of the press has committed a crime, (b) No-
tice need not be given if there is probable cause to believe such notice may result
in destruction of tiie evidence.
Method. — Similar to coverage of Civil Rights Act, providing both civil and
criminal penalties in Federal and State court.
Bill number. — S. 32.58, introduced by Sen. Sasser (D.-Tenn.). no cosponsors.
6. Drinan Bill. — Limits Federal and State search warrants against members of
the press not suspected of a crime.
Would require notice and court hearing before any Federal or State search
warrant is executed against "any person engaged in the gathering or dissemina-
tion of news for the print or broadcast media," except if there is a finding of
"probable cau.se" that the news person has committed or is committing a criminal
offense.
Method. — Similar to the coverage of the Civil Rights Act, providing both civil
and criminal penalties for violation.
Bill number.— H.R. 12952, introduced by Rep. Drinan (D.-Mass.) and 36
cosponsors.
7. Qnayle Bill. — Limits Federal and State search warrants against all per-
sons not su.spected of a crime. Identical to the Bayh Bill.
Bill number.— H.R. 13017, introduced by Rep. Quayle (R.-Ind.), approximately
20 cosponsors.
fi. Edwards Bill— Limits Federal and State search warrants against all per-
.<?ons not suspected of a crime. Identical to Bayh Bill except contains a guarantee
that "nothing in this Act shall be construed to create or imply any limitation
upon . . . the Fir.st Amendment."
Bill number.— H.R. 3376, introduced by Rep. Don Edwards (D-Calif.), no
cosponsors.
9. Jacohs Bill — Limits Federal and State search warrants against all persons
not suspected of a crime.
Would prohibit Federal and state search warrants against all persons, except
(a ) If there is a finding of "high probability" that the evidence would be destroyed
if a subpoena was served, (b) Even where a warrant is allowed, "privileged
information" is to be further protected by sealing or other methods, pending a
judicial hearing.
Method. — No civil or criminal penalties for violation.