Bill number. — H.R. 13113, introduced by Rep. .Tacohs and one co.sponsor.
10. Fii^h Bill. — Limits Federal search warrants against all persons not sus-
pected of a crime.
Would prohibit Federal search warrants against all persons, except if the
person is a suspect in the crime.
Method. — By amendment to the Federal Criminal Code, with no penalties
specified, but also authorizing civil suits in Federal or state court.
147
Bill Number. — H.R. 131GS, introduced by Rep. Fi.sh (D-N.Y.), no co.sponsors.
11. Fish 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 member of the
press has committed or is committing a crime.
Method. — Similar to the coverage in the Civil Rights Act of 1964, providing
both civil and criminal penalties for violation.
Bill number. — H.R. 13109, introduced by Rep. Fish (D-X.Y.), no cosponsors.
12. Railsback Bill. — Limits Federal and State search warrants against mem-
bers of the press not suspected of a crime.
Would prohibit Federal and state search warrants against members of the
press, except (a) If there is a finding of "probable cause" that such person has
committed or is committing a crime; or (b) If there is a finding of "probable
cause" that the materials sought would be destroyed if the warrant is not issued.
Method. — Similar to the coverage in the Civil Rights Act of l'JC4 ; no criminal
or civil penalties are authorized for violation.
Bill number. — H.R. 13319, introduced by Rep. Railsback (R-Ill.), no cosponsors.
Search Wabrants Since 1970
fifteen incidents of search warrants issued on the news media since 1970
1. April 1971, Stanford Daily, Palo Alto, Ca. Police were seeking unpublished
photos of demonstration at a hospital.
2. October 1973, Berkeley Barb, Berkeley. Police sought letter from the August
Seventh Guerilla Movement ; warrant served on the attorneys for the Barb.
3. February 1974, Berkeley Barb, Berkeley. Police were seeking a letter from
the Symbione.se Liberation Army concerning the Patricia Hearst kidnapping.
4. March 1974, KPFA-FM, Berkeley. Police were seeking letter to station from
the Symbionese Liberation Army regarding the death of an Oakland school
oflScial.
5. June 1974, Berkeley Barb, Berkeley. The Federal Bureau of Investigation
was seeking a letter from the Black Liberation Army ; warrant issued on
attorneys.
6. June 1974, Phoenix, San Francisco. The Federal Bureau of Investigation
was seeking a letter from the Symbionese Liberation Army ; warrant issued on
attorneys.
7. October 1974, KPFK-FM, Los Angeles. Police were seeking tape recorded
message from the New World Liberation Front regarding a hotel bombing.
8. October 1970, KPOO-FM, San Francisco. Police were seeking a letter written
by the New World Liberation Front concerning a hotel bombing.
9. October 1974, L. A. Star, Los Angeles. Warrant issued for search of tabloid's
offices ; police were seeking unpublished articles, address books, and unpublished
photos in regard to a complaint by a star that her face was used without authori-
zation superimposed in a nude photo.
10. September 1977, WJAR-TV, Providence, R. I. Police were seeking out-takes
of picket line disorder in Warwick, R.I.
11. December 1977, KRON-TV, San Francisco
12. December 1977, KTVU-TV, San Francisco
13. December 1977, KGO-TV, San Francisco
14. December 1977, KPIX-TV, Oakland
In all four of the above situations, police were seeking unpublished film of a dis-
order at a houseboat community,
15. April 1978, Associated Press bureau, Helena, Mont. Police were seeking
unpublished notes and tape recording of interview with murder susiiect in
custody.
Statements of Leading Media Figures
[From The News and The Law]
Howard K. Smith, ABC News. — ^When I was a new young reporter at the
Fnited Press in Nazi Berlin . . . there was a knock at the door , . . and 15
Gestapo men barged past me, began opening every desk and studving every piece
of paper they could find ... Six hours later they left. ... I remember 'thank-
148
ini; God this f'oulcln't happen in Amoriea. Well, now it can it is the worst, most
dangerous ruling the Court has made in memory . . ."
JaniPS R. Reston, The New York Times.— "Let us suppose this new ruling of
the Supreme Court had been in effect a few years ago. It would have been very
easy for Richard Nixon to get a court order to raid the offices of The New York
Times [for the Pentagon Papers] . . . The cops would have been able to come
into The Washington Post [searching for Watergate sources] . . ."
The Associated Press. — "It would open the door for harassment." Keith Fuller,
general manager of AP.
The American Newspaper Publishers Association. — "The decision puts a
sledgehammer in the hands of those who would batter the American people's First
Amendment rights. ... It literally and legally locks the lock that protects the
exercise of a free press . . ." Allen Neuharth, president of ANPA and president
of Gannett Newspapers
'•It is self-evident that police searches of newspaper offices burden freedom
of the press." .Terry Friedheim, general manager of ANPA.
Radio and Television News Directors Association. — "Search warrants in actual
practice mean that law enforcement officials can go through everything in the
newsroom including confidential and unpublished information. . . ." Ernest
Schultz. president of RTNDA and news director of KTBY-TV, Oklahoma City.
William Thomas, Los Angeles Times.— "Incredible."'
American Society of Newspaper Editors. — "The ruling could open the door for
the greatest abuse ... A warrant could be granted to a magistrate at midnight
with no opportunity for a newspaper to present a counter point of view until the
search has taken place. Obviously, this could have a chilling effect on the press."
John Hughes, president of ASNE and editor of The Christian Science Monitor.
"All we can hope for is that magistrates will keep the First Amendment in
mind." Richard Schmidt, counsel for ASNE.
Society of Professional Journalists, Sigma Delta Chi. — "By giving the police
a new privilege to seize unpublished and unhroadcast material from radio and
television files, the Court has rewritten the First Amendment." Scott Aiken,
chairman of the FOI Committee and finance editor. The Cincinnati Enquirer.
Walter Cronkite, CBf^ ]\''cir.'?.— "Journalists are probably appalled by the Su-
preme Court decision on the searching of newsrooms . . . [A] warrant is signed
l»y a judge, who [frequently] owes his election to the [local] political machine
political machine . . . [S]ources dry up, scandal dies, and the political machine is
free . . ."
Anthony Day, Ln.9 Angelea Times: chairman. American Society of Newspaper
Editors' FOI Committee. — "The decision makes newspapers the arm of the prose-
cutrir."
Floyd Abrams, counsel to NBC Neivs and The New York Times. — "This is a
short cut to a wide range of already existing First Amendment protections ....
What meaning do shield laws have any more?"
Benjamin C. Bradlee, The Washinfjtov Post. — ".Tust plain awful .... Beyond im-
flerstanding. Under the ruling, the Pentagon Papers could never have been
published."
The Reporters Committee for Freedom of the Press. — "A constiutional outrage
.... The Carter administration must share the blame for this landmark injury to
the First Amendment because its solicitor general urged the Supreme Court to
approve of the kind of warrant involved in the case." Jack C. Landau, director
and law columnist, Newhouse Newspapers.
Editorial Reaction to The Stanford Daily Ruling
[From Editor and Publisher]
Chicago Tribune. — The question involved in the Stanford case is one which
slioiild be subject to solution on the l)asis of reason, not categorical decrees. Mr.
Wliite and the court majority have given us a broad decree which is bound to
have a deterrent effect on any editor or reporter who sees a local wrong which
needs risrhting. It will, in short, protect the Watergates of the future."
Newsday. Long Island. — "Newspapers suffer a debilitating conflict of interest
in responding to attacks of this kind. On the one hand, the press to many is just
another special interest, predictably aggrieved by erosion of a privilege. Yet the
press was entrusted by the Founding Fathers with a special role in protecting the
149
public from official arrogance— which is why the First Ameudment was written
iu the hrst place.
Fortunately, ifs a rare day when the Supreme Court is so radically inclined —
and radical is the correct word — as to tinker with the remarkably effective day-
to-day luiictiouing of the First Amendemnt over nearly two centuries.
'•Uufortiiinittiy, it seems equally rare for journalists to succeed in convincing
the courts that their prime concern is to guard the public interest rather than to
enlarge newspaper circulation and profits. In this sense, at least, the media must
louk to their own perceived lack of profession-wide standards to understand why
rulings like Wednesday's spring out of the woodwork."
Clearwater (,Fla.) Sun.^"This week's court decision may give rise to a new
breed of craftsman. Hell be the man who can design or build hidden wall panels
or secret trap doors where evidence, no matter how iunocent, can be hidden.
"Another branch of knowledge that may flourish is cryptology. A reporter talk-
ing to a Mafia informer will be well advised to couch his notes in as mysterious a
script as he can conjure up. As he sits writing his expose, he may And himself
looking up into the stern eyes of a deputy sheriff who has just marched through
the door, waiving a search warrant issued by a friendly neighborhood magis-
trate.'
Toledo Blade. — "This decision, on a 5 to 3 vote, comes perilously close to giv-
ing law enforcement officials the right to engage in fishing expeditions against the
news media.
"The Stipreme Court's ruling appears to sanction police efforts to make news
organizations an arm of law. As such, it is contrary to the spirit and intent of the
Fii'sc Amendment . . ."
Washington Post. — "The idea now accepted by the court, that no place is im-
mune from government scrutiny except a person's brain is alien to the precepts of
the Bill of Rights."
Los Angeles Times. — "Over the strong protests of three dissenters, the U.S. Su-
preme Coiu't has taken a narrow, crabbed, suspicious view of the First Amend-
ment, and has given exuberant, indulgent and trustful approval to a sharp ex-
tension of police power.
Chicago Sun-Times. — "It was a landmark decision in press law — in the sense
that a bomb crater or a strip-mine scar can be a landmark.
"When the U.S. Supreme Court ruled Wednesday that police can search news-
paper offices even though no employee of the paper is involved in a crime, it set a
horrid precedent. One can only hope some later court will reverse the move, per-
haps heeding the eloquent dissents in the case."
Detroit News. — "The Supreme Court's ruling puts a fearsome weapon in the
hands of maliciotis judges and policemen bent on fiarassing a newspaper that has
been critical of them or their friends. On the flimsiest pretext they could go
rummaging through a newspaper office, disrupting the operation, seizing docu-
ments and intimidating the employes — in brief, running roughshod over the First
Amendment."
". . . When the press is subjected to police search and intimidation, the public
interest suffers, for the press serves as tlie public's channel of information about
politics, government, and other public affairs. Moreover, if the press can be
muffled, the ordinary citizen can be muffled, too."
Providence (R.I.) Journal-Bulletin. — "The United States Supreme Court's de-
cision permitting police to conduct unannounced searches of newspaper offices
for criminal evidence strikes a powerful blow at press freedom in America . . .
"When government encroaches on the gathering of news and the free exchange
of information, as it has done in this instance, it is democratic society that is the
ultimate loser, and that means all of us."
Hartford (Conn.) Courant. — " . . . Bank robbers are not camped out in news-
rooms, free to store the fruits of their labor, while police wait helplessly outside.
"The evidence police yearn for within the newsroom walls is information —
information gathered for the puiijose of informing the public, information that
will dry up if its sources are easily exposed to police scrutiny at will."
New York Daily News. — "Freedom of the press is directly threatened by the
dismaying decision of the U.S. Supreme Court giving the police practically free
rein to make unannounced searches of the property of innocent parties . . . Once
it sees the enormous Pandora's box that has been opened, we hope the Supreme
Court will have the intellectual courage to reverse it.self."
Miami News. — "The courts have left new9pai>ers no choice except to resist this
legal assault on their freedom by taking special precautions to protect all sensitive
150
material from police searches. Such action shouldn't he necessary in a democracy
that has hoasted about its press freedom for more than 200 years."
Minneapolis Star. — "It poses a thi-eat of irreparable injury to the freedom of
the press. Indeed, although the case before the court arose iu 1971, it is no longer
an isolated incident, there being 10 similar ones recently . . .
". ... In 1972 the Supreme Court held that journalists are entitled to have courts
balance First Amendment interests against claimed law enforcement needs before
confidential information must be produced. And 26 states, including Minnesota,
recognize this principle in their reporters' shield laws. Those laws are jeopardized
by the majority's autipress doctrine."
Editoeial Statements on the Stanford Ruling
"The privacy rights of the lavv^-abiding were shabbily treated by the Supreme
Coiirt the other day when it held that police may search for evidence of crime
on the premises of persons who are not themselves suspected of any crime.
The Court's treatment of the First Amendment issue was just as cavalier . . .
In this decade, it is hardly fanciful to worry that public oflBcials bent on obstruct-
ing justice might invoke such authority malevolently. Even worse, wiretapping is
merely one kind of search ; there seems to be no Constitutional barrier to court
approved wiretapping of reporters' telephones." New York Times.
"In an appalling display of muddleheadedness, the U.S. Supreme Court has
ruled that police may swoop down unannounced on newspaper offices or any other
innocent party's premises and search for evidence bearing on criminal
Investigations.
The 5-to-3 decision strikes at the very heart of the newspaper's role as an
investigator of wrongdoing and a watchdog of government. Gone is the reporter's
ability to promise confidentiality to his soiirces. Gone, too, is the protection that
has kept police from trying to intimidate newspapers by conducting harras^sing
searches of their files and premises." The Miami Herald.
Supreme Court of the United States
OCTOBER term, 197 7
Nos. 76-1484, 76-1600
James Zuroher, et al., petitioners, v. The Stanford Daily, et al.,.
respondents.
Louis P. Bergna, et al., petitioners, v. The Stanford Daily, et al.,
EESPONDENTS.
On Writs of Certiorari to the United States Court of Appeals for the Ninth
Circuit.
Motion for leave to file brief and brief in support of petition for rehearing sub-
mitted by amici curiae.
The Reporters Committee for Freedom of he Press.
The American Newspaper Publishers Association.
The National Newspaper Association.
The National Association of Broadcasters.
The American Society of Newspaper Editors.
The Associated Press Managing Editors.
The Radio-Television News Directors Association.
The Student Press Law Center.
The Society of Professional Journalists (Sigma Delta Chi).
The Newspaper Guild (AFI^-CIO).
The American Federation of Television and Radio Artists (AFL-CIO).
The California Newspaper Publishers Association.
The Newspaper Association Managers, Inc.
The National Press Club.
Of counsel. — Jack C. Landau, the Reporters Committee for Freedom of the
Press, 1750 Pennsylvania Avenue. N.W.. Washington, D.C.
Lloyd N. Cutler, William T. Lake. Wilmer. Cutler & Pickering, 1666 K Street,
N.W., Washington, D.C, attorneys for Amici Curiae.
The Newspaper Association Managers, Inc. represents the executive directors of
151
the following press associations not previously appearing as amici curiae in this
case :
Alabama Press Association, Allied Daily Newspapers, Arizona Newspapers Asso-
ciation, Inc., Arkansas Press Association, Canadian Community Newspapers
Association, Colorado Press Association, Florida Press Association, Georgia
Press Association, Hoosier State Press Association, Inc., Idaho Newspaper Asso-
ciation, Illinois Press Association, Inc., Inland Daily Press Association, Iowa
Press Association, Inc., Kansas Press Association, Kentucky Press Association,
Louisiana Press Association, Maryland-Delaware-D.C. Press Association, Inc.,
Massachusetts Newspaper Publishers Association, Michigan Press Association,
Minnesota Newspaper Association, Mississippi Press Association, Missouri
Press Association, Inc., Montana Press Association, Nebraska Press Association,
Nevada State Press Association, New England Press Association, New Jersey
Press Association. New Mexico Press Association, Inc., New York Press Associa-
tion, New York State Publishers Association, North Carolina Press Associa-
tion, Inc., North Dakota Newspaper Association, Ohio Newspaper Association,
Oklahoma Press Association, Ontario Weekly Newspapers Association, Oregon
Newspaper Publishers Association, Inc., Pennsylvania Newspaper Publishers'
Association, Publishers Bureau of New Jersey, Inc., South Carolina Press
Association, South Dakota Pre.ss Association, Southern Newspaper Publishers
Association, Suburban Newspapers of America, Tennessee Press Association,
Texas Press Association, Utah Press Association, Virginia Press Association,
Inc., Washington Newspaper Publishers' Association, Wisconsin Newspaper
Association, and Wyoming Press Association.
J. Laurent Scharff, 1200 ISth Street, N.W., Washington, D.C., The Radio-Televi-
sion News Directors Association.
Christopher B. Fager, and IMichael Simpson, 1750 Pennsylvania Avenue, N.W.,
Washington, D.C., The Student Press Law Center.
David S. Barr, 1101 17th Street, N.W., Washington, D.C., The Newspaper Guild.
Mortimer Becker, and Stanford I. Wolff, 1350 Avenue of the Americas, New
York, N.Y.. The American Federation of Television and Radio Artists.
Michael B. Dorais, 1127 11th Street, Sacramento, Calif., The California News-
paper Publishers Association.
Arthur B. Hanson. 888 17th Street, N.W., Washington, D.C., The American
Newspaper Publishers Association.
James R. Cregan, 529 14th Street, N.W., National Press Building, Washington,
D.C., The National Newspaper Association.
Erwin G. Krasnow, 1771 N Street, N.W., Washington, D.C., The National
Association of Broadcasters.
Richard M. Schmidt, Jr., 1920 L Street, N.W., Washington, D.C. The American
Society of Newspaper Editors ; and The Associated Press Managing Editors.
Senator Bayh. Mr. Friedheim, will you please proceed ?
TESTIMONY OF JEERY W. FEIEDHEIM, EXECUTIVE VICE PRESI-
DENT AND GENERAL MANAGER, THE AMERICAN NEWSPAPER
PUBLISHERS ASSOCIATION; ACCOMPANIED BY PRANK NORTON,
COUNSEL
Mr. Friedheim. Thank you, Mr. Chairman.
I am accompanied by ANPA's counsel, Mr. Frank Norton.
ANPA, as you Imow, is a trade association whose 1,293 member
newspapers comprise more than 91 percent of the daily and Sunday
newspaper circulation in the United States. Many nondaily news-
papers also a re members.
On behalf of our membership, I thank the chairman and members
of this subcommittee for this opportunity to testify on the Supreme
Court's decision in Zurcher v. The Stanford Daily. And I particularly
thank the subcommittee for its prompt and diligent efforts to develop
legislation wliich would correct that "rulc-of-rummage" decision and
Avould protect newspapers and other third parties — who are not
suspected of criminal conduct — from surprise, "quick-warrant-and-
152
ransack*' police searches of their premises that the court's decision
autliorizes.
The response from all elements of our free press to the Court's May
81 decision has been continuous, unanimous and properly outraged.
I hope this unanimity of response from the press and the overwhelm-
ing support for remedial legislation has been noted by and is helpful
to tliis commit fee and tlie Congress.
The Court's decision, in the' words of ANPA chairman and presi-
dent, Allen H. Neuharth, ". . . puts a sledgehamer in the hands of
those who would batter tlie American people's first amendment rights.
It authorizes harasi^ment and intimidation of the public's rights to
know, and it literally and legally picks the locks that protects the
exercise of a free press and. in effect, of free speech."
And, Mr. Neuharth continued : "I am not arguing that the press
should be judge, jury and a lavr unto itself. But. if a newspaper pos-
sesses legitimate evidence, that material can and should be obtained
only through the subpena process and not through a search-first-ask-
Inter policy. I am sure the free press will have the help and under-
standing of most American law enforcement officei's: because they do
not wish to become storm troopers any more than Americans wish to
be stormed.''
That statement, Mr. Chairman, reflects ANPA's recognition that
although the Sf./nforr/ P.^/iJi/ case dealt specifically with a police raiti
on f!, newspaper, it directly affects all citizens and their now-threatened
T'ight to be protected from unreasonable search and seizuT^e. For that
reason, we support. Mv. Chairman, this f^ommittee's le.o-islative efforts
to perfect and report bills such as those introduced by Senators Bayh,
Dole, Haskell and others which would bar police searches of the
premises of all third parties not suspected of crime.
My comments today Avill focus ]unmarily on the concerns of the free
press in the wake of the Stanford Daily de(-ision and on the tvpe of
legislation we believe this committee should consider to protect the
l)ress and all innocent third parties from police raids on private
])remi';es. ANPA does not claim to have eitl.er the idtimate analysis
or the final answer to this complex situation. But. we do pledge to you
and to the American peo])lo our candid views and best efforts as' we
all cooperate within our constitutional system of checks and balances
to reasonably and respectfully redress a split-decision Supreme Court
error.
In the Court's majority oi>i)uon. Justice White maintained that
"overall reasonableness" would be exei'cised by magistrates and police
in issuing warrants and carrying out searches of newsrooms. "We can-
not share Justice White's optimicm on this point; historv is against
liim.
We do not impugn the integritv or the ]-)ractices of the vast majority
of American law enforcement officials, but it is no flight of fancv to
state todav that some of the most important func^tions and resjionsi-
bilities of this Nation's newspapers could be ended unless this Court
decision is I'apidly reversed.
Every day newsi)apers are involved in gathering information and
reporting to the peojde concerning the operation of (Jovernment — in-
cluding the police, the ])rosecutor'=. and the courts. Much of this in-
formation comes from confidential sources — people who would not
153
or could not publicly provide this information about alleged abuses
or oulriglit criminality. This tlow of infonnation — \ ilal it tlie pre.ss is
to fullili its watchdog function for the public — could slow to a trickle
if newspapers can no longer guarantee confidentiality.
Indeed, this already may be occurring in the month and a half since
the Court's decision.
Similarly, the investigatory spirit of a newspaper itself may be
sapped in some instances. It would be regrettable but understandable
for a reporter to be reluctant to pursue leads if he knew that perhaps
the target of his story, or the target's friends, could obtain a warrant
and uncover all of the reporter's information and sources. It is per-
haps not unfair to note that confidential sources can range from