exposure of newsroom files to police in the course of a
search will also jeopardize the editorial process. In any
press search, the police -wiW discover not only factual
information, but also the written work product of re-
porters, editors, and publishers reflecting their appraisals
and criticisms of the quality of the information available
and the reports that have been published on the basis of
that information. As courts have recognized, this kind
of exposure
"endangers a constitutionally protected realm, and
unquestionably puts a freeze on the free interchange
of ideas within the newsroom. A reporter or editor
. . . would often be discouraged and dissuaded from.
the creative verbal testing, probing, and discussion
of hypotheses and alteniatives which are the sine
qua non of responsible jouimalism." "
Physical disruption. Unlike lesser government intru-
sions into the news-gathering process, searches of press
offices also threaten physical disruption of the business
of the press, and a consequent interference with the
dissemination of news. Because of the severe time dead-
lines under which the press must operate, an extensive
search can play havoc with timely publication or broad-
cast. As Frank Haven of the Los Angeles Times tes-
tified :
"The thorough disruption of day-to-day newspaper
operations which would result from subjecting ne
â– V5-
*" Herbert v. Lando, No. 77-7142, slip op. at 232 (2d Cir. Nov. 7,
1977) ; see id. at 240. See also Bursey v. United Statf.^, suvra,
466 F.2d at 1084 ("Questions about the identity of persons who
were responsible for the editorial content and distribution of ;-'.t,"V3.
paper and pamphlets ... cut deeply into press freedom.")
23
199
papevs to the use of search warrant procedures is
too obvious to require much elaboration. If law en-
forcement officers have the power to at any time ap-
pear at the office of a newspaper with a search
warrant, systematically go through the files of a
newspaper relating to a particular event, confiscat-
ing those materials which appear to suit their needs,
. at that point the precise, and often tight, time re-
quirements in publishing a newspaper are disrupted,
personnel are diverted from their duties, materials
necessary to publish the paper may be taken, and,
in a word, the ability, not to mention the constitu-
tional right, of the newspaper to determine what
will be published, and when, is put in serious jeop-
ardy." ''
In fact, just such interference occurred as a result of
the eight and one-half hour search of the offices of
KPFK-FM in Los Angeles. {See p. 12, supra.)
B. Notice and Opportunity for an Adversary Hearing
Must Precede a Search That Threatens Irreparable
Injury to First Amendment Interests.
As we have shown, much of the information typically
found in a newspaper or broadcast offi.ce enjoys substan-
tial legal protections against compelled disclosure. The
First Amendment and state shield laws both protect
against indiscriminate police rummaging through press
files. But a surprise search negates these protections.
Permitting the police to use procedures that foreclose
any opportunity to invoke lawful defenses mocks this
Court's assurance in Branzhurg that judicial supervi-
sion vill be available to prevent the e\asceration of press
freedom.
♦« Affidavit cf Frank Haven [managing editor, Los Angeles Times}
tf 6, J.A. 63: Affidavit of Gordon Manning [Director for News, CBS
News] •! 5, J.A. 124.
24
200
The question here is not hov; much substantive First
Amendment protection any particular materials might en-
joy, or under what circumstances. It is not even what
standards should guide those decerm.inations. The ques-
tion is whether all protections can be sv/ept aside by
search procedures that leave no room for any protections
to be invoked.*"
*' Although this case presents an opportunity to decide whether
any person not suspected of a crime is entitled to notice and an
opportunity to be heard before his premises are searched, that ques-
tion need not be decided at this time. The narrower question be-
fore this Court is whether the press, whose rights are specifically
mentioned in the First Amendment and whose freedom is indispens-
able to all who enjoy a democratic system of government, is entitled
to such protection. We note that the procedural prerequisites for a
valid search and sei2ure under the Fourth Amendment are especially
strict where First Amendment interests in "freedom of speech, or
of the press" are implicated. In such cases, the Fourth Amendment
imposes "a higher hurdle in the evaluation of reasonableness" for a
search and seizure, Roaden v. Kentucky, 413 U.S. 496, 504 (1973).
See United States v. MiUer, 425 U.S. 435, 444 n.6 (1976) ; Lee Art
Theatre. Iru;. V. Virginia. 392 U.S. 636 (1968); Stanford x. Texa.s,
379 U.S. 476 (1965); United States \. Thirty-Seven Phningrnphs',
402 U.S. 363 (1971). However, as we show in text, the First Amend-
ment of its own force requires the procedures imposed bv the courts
below, whatever the reach of the Fourth Amendment.
If this Court reaches the broader question of the requirements
imposed by the Fourth Amendment generally on searches of non-
suspects, we submit that the decision below is correct for the
reasons stated in the district court's opinion and in Part II of
respondents' brief. As respondents obser\'e, if the state may search
the premises of nonsuspects for evidence at will, then it may intrude
without restraint upon private relationships protected by the federal
Constitution, state statutes, and common law privileges. Such in-
trusions cannot be squared with the Fourth Amendment's prohibi-
tion against unreasonable searches. Consider, for example, the
membership lists which this Court found protected by the First
Amend.T.ent against disclosure compelled bv court order m XAAC^
w.Alzbama, 357 U.S. 449 (1958). Even if those lists were not ab.^o-
lutely privileged against disclosure in a criminal investi-at'on
wh<-re the NAACP was not a suspect. NAACP v. Alabrma mak-s
clear that the state would have to show a compelling need before
any court c-uld require production. It is therefore inconceivable
[Footnote continued.'
25
201
As we now show, in the circumstances of this case,
the First Amendment requires one simple but effective
procedural safeguard: The compelled disclosure must be
preceded by notice and an opportunity for an adversary
hearing. Only then can the courts tailor and confine
the disclosure of confidential information to what is ap-
propriate under Branzburg and other applicable authori-
ties. Absent that procedural protection, even an indis-
putable claim of privilege or other defense will fail for
lack of any opportunity to assert it.
"The history of liberty has largely been the history of
the observance of procedural safeguards." " Nowhere has'
this been more true than for the liberties guaranteed by
the First Amendment. Under numerous decisions of this
Court, government action that threatens irreparable in-
jury to First Amendment interests must be preceded by
notice and an opportunity for an adversary hearing.
In Carroll v. President & Commissioners of Princess
Anne, 393 U.S. 175 (1968), the Court invalidated an
that, consistent with the reasonableness requirement of the Fourth
Amendment, the state could evade this constitutional protection by
the mere expedient of a search under warrant.
Indeed, Congress has recently shown that it is mindful of Fourth
Amendment requirements in this respect. In Title III of the Omni-
bus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-20,
Congress imposed limitations on wiretapping similar to those im-
posed by the courts below on physical searches. The Act requires
that wiretapping be directed only against persons suspected of com-
mitting a crime or communications facilities used by such persons,
id. §2518(3), not nonsuspects, such as jouraalists not suspected of
any crime. It also requires that efforts be made to minimize the
need for wiretapping by using other investigative alternatives prior
to obtaining authorization for wiretapping, id. § 2518(3) (c), and
that any wiretap "be conducted in such a way as to minimize the
interception of communications not othei-wise subject to intercep-
tion." Id. § 2518(5).
*^McNabb v. United States, 318 U.S. 332, 347 (1943) (Frank-
furter, J.).
26
202
injunction issued ex parte against a political rally. The
Court "insisted upon careful procedural provisions, de-
signed to assure the fullest presentation and considera-
tion of [the proposed action] which circumstances per-
mit." *' The Court reasoned that the only vs^ay to prevent
unlavrful suppression of protected activity was to give
the proponents of the rally a prior opportunity to chal-
lenge the injunction or to seek a narrowing of its provi-
sions. The need for that procedural safeguard was par-
ticularly acute because of the political nature of the
speech involved, since "[i]t is \atal to the operation of
democratic government that the citizens have facts and
ideas on important issues before them." '" As the Court
in Carroll observed, "[here] the reasons for insisting
upon an opportunity for hearing and notice . . . are even
more compelling than in cases involving allegedly obscene
books. The present case involves a rally and 'political'
speech in which the element of timeliness may be im-
portant." 393 U.S. at 182.
As Carroll recognizes, the Court has consistently re-
quired the same procedural safeguard even in less com-
pelling First Amendment contexts. In A Quantity of
Books V. Kansas, supra, and Marcus V. Search WmTont,
367 U.S. 717 (1961), the Court required that the seizure
of large quantities of books be tested in a prior adversary
proceeding in order to avoid the danger that protected
speech would needlessly and unlawfully be suppressed in
the process of preventing obscene and unprotected expres-
" 393 U.S. at 181.
5« A Quantity of Books v. Kansas, 378 U.S. 205, 224 (1964) (Har-
lan, J., dissenting) ; see Nebraska Press Ass'n v. Stuart, 427 U.S.
539, 559-60 (1976) ; Cox Broadcasting Corp. v. Cohn, 420 U.S. 4'39.
491-93 (1975); Mills v. Alabama. 384 U.S. 214, 219 a96o>: Xen-
York Times Co. v. Sullivan, 376 U.S. 254, 271 (1954).
27
203
sion." Although those cases involved searches and seiz-
ures, the Court decided them under First Amendment
standards and found it unnecessary to reach Fourth
Amendment issues. Similarly, in other cases, the Court has
insisted that censorship measures contain procedural safe-
guards that are adequate to "ensur[e] the necessary sen-
sitivity to freedom of expression." " And the Court re-
cently reaffirmed that "[cjourts will scrutinize any large-
scale seizure of books, films, or other materials presump-
tively protected under the First Amendment to be certain
that the requirements of A Quantity of Books and Marcus
are fully met." Heller v. New York, 413 U.S. 483, 491
(1973)."
The circumstances here are even more compelling than
those in Carroll, Marcus, or A Quantity of Books, and the
" The danger that protected conduct will be injured need not
be certain. As in Carroll and in obscenity cases such as A Quantity
of Bonks v. Kansas, supra, there need be only the likelihood of
injury. "[OJpportunity for a fair adversary hearing must precede
the action, whether or not the speech or press interest is clearly
protected under substantive First Amendment standards." Board of
Regents v. Roth, 408 U.S. 546, 575 n.l4 (1972).
" Freedman v. Maryland, 380 U.S. 51, 58 (1965) ; see, e.g.. South-
eastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Bantam
Books, Inc. V. Sullivan, 372 U.S. 58 (1963).
»3 In Heller, the police seized a single copy of an allegedly ob-
scene film from a theater pursuant to a warrant issued and exe-
cuted without a prior adversary hearing. This Court upheld the
seizure but made clear that its decision proceeded on the assumption
that a duplicate film was available to the theater, and that showing
of the film could therefore continue. Hence, the danger of injury
to speech interests under the particular circumstances of that case
was virtually nonexistent. 'Where ofiices of a news organization are
searched, however, the danger to its protected interests in confi-
dentiality is severe and immediate. Once confidential sources or
editorial materials are disclosed, the First Amendment interests at
stake are irreparably harmed. See pp. 14-23, su-pra. The Court was
at pains in H-Uer to make clear that the holdings of cases such as A
Qvnvtity of Books v. Kansas, supra, requiring notice and an ad-
versaiT hearing prior to government action imperiling First Amend-
ment interests, were left undisturbed. Id. at 491.
28
42-190 O - 79 - 14
204
harm is irreparable. A surprise search of an entire news
office intrudes on the freedom of the institution, expressly
identified in the First Amendment, that is primarily
responsible for disseminating information to the public.
Where docum.entary materials are sought from the press
by search, the risk of an unnecessarily ''large-scale"
search and seizure is substantial. And even where no
extensive seizure occurs, the danger of wholesale ob-
struction to the circulation of information and ideas is
great. The seizure, for example, of the only photographic
negatives of a fast-breaking news event would be as effec-
tive a barrier to the dissemination of information as the
seizure of the only copy of an allegedly obscene film pos-
sessed by a theater. Since the procedural safeguard of a
prior adversary hearing is required in the latter case,^"*
it is certainly required where information vital to the
public is seized by means of a surprise press search.
As noted, the Court in Branzburg was careful to
stress that government orders requiring journalists to
produce evidence are subject to challenge by newsmen
prior to disclosure, to allow First Amendment interests
to be weighed against competing law enforcement inter-
ests.'^ The Court in Branzburg also observed that no dan-
ger there existed that the "grand juries were *prob[ing]
at will and without relation to existing need' " or "forc-
ing wholesale disclosure of names and organizational
affiliations." ""â– By contrast, the ex parte search procedure
followed in this case foreclosed the opportunity for prior
judicial control. The participation of the magistrate in
the warrant process did not provide the necessary con-
» Heller v. Neto York, supra, 413 U.S. at 491-93.
"40S U.S. at 678, 708; id. at 710 (Powell, J., concurring).
56 Id. at 700, citing DeGregory v. Attomexj General, 383 U.S. 825.
829 (l')66). "No attempt [was] made to require the pres-s to pub-
lish its sources of information or indiscriminately to disclose them
on request." Id. at 632.
29
205
trol, because the magistrate had no knowledge of the
nature of the materials in the files of the nev.-spaper or
of the First Amendment interests jeopardized by dis-
closure. Moreover, the indiscriminate search of the Stan-
ford Daily's offices — with no opportunity for the staff to
locate and produce the requested photograph itself — ^made
the danger of "wholesale disclosure" of "names" and
"affiliations" an ominous reality.
The procedural rights afforded to the press by the
courts below are no greater than those enjoyed in
Branzburg and no greater than politicians, book dealers,
and theater ownei-s enjoy under Carroll^ A Quantity of
Books, and Heller. They are notice and an c^portunity
for an adversary hearing before an irreparable invasion
of First Amendment interests oocors^ to pernut the valid-
ity and scope of that invasi(Hi to be judicially tested
before the invasion occurs.'' Such a procedure will per-
mit the press to seek to establish that the materials
sought are privileged, or at least to narrow the com-
pelled disclosure to that which the court finds is justified.'^
Surprise searches of press offices are presumptively un-
necessary to effectuate legitimate law enforcement needs.
This Court's decisions make dear that such a serious im-
pairment of First Amendment interests can be upheld,
if at all, only "if the State demonstrates a sufficiently im-
'^ "No better instrument has been devised for arriving: at the
truth than to give a person in jeopardy of serious loss notice of the
case against him and opportunity to meet it." Joint Anti-Fascist
Refugee Comm. v. McGrath, 341 U.S. 123, 171-72 (1951) (Frank-
furter, J., concurring). Notice and opportunity for a hearing are,
in many contexts, the core of the protection afforded by the Due
Process Clauses of the Fifth and Fourteenth Amendments. See,
e.g., Gofi-i V. Lfypez, 419 U.S. 565 '.'1975) (school suspension); Bell
V. Burson, 402 U.S. 535 (1971) (driver's license suspension) ; Lon-
dimcr V. Denver, 210 U.S. 373 (1908) (tax assessment).
=-^ Carroll v. President & Commissioners of Princess Anne, supra,
393 U.S. at 183.
30
206
portant interest and employs means closely drawn to
avoid unnecessary abridgement" of those freedoms. "^'^ A
very hea\y burden — proof that establishes reasonable
cause to believe that the press would destroy evidence in
the face of a subpoena or other compulsory process —
must be sustained before any such search could be vali-
dated.*^'^ Unless such a showing can be made, law en-
forcement officers have less intrusive means to achieve
their interests, and those means must be pursued. As the
Court said in Carroll:
"In this sensitive field, the state may not employ
'means that broadly stifle fundamental personal lib-
erties when the end can be more narrowly achieved.'
Shelton- v. Tucker, 364 U.S. 479, 488 (I960). In
other words, the order must be tailored as precisely
as possible to the exact needs of the case. The par-
ticipation of both sides is necessary for this purpose.
Certainly, the failure to invite participation of the
party seeking to exercise First Amendment rights
reduces the possibility of a narrowly drawn order,
and substantially imperils the protection which the
Am.endment seeks to assure." "
^^ Buckley V. Valeo, 424 U.S. 1, 25 (1976). See also United States
v. Robd, 389 U.S. 258, 288 (1967).
** Because of the danger that a search of press offices will result
in a prior restraint on publication or otherwise obstruct the flow
of information to the public, the procedural safeguard of notice
and opportunity for a hearing should be dispensed with only where
there is a substantiated and convincing showing to a magistrate of
a danger that evidence will be destroyed. The courts below expres.-ly
recognized an exception for that rare situation. See 353 F. Supp. at
133.
However, there was nothing before the magistrate in this case
that even suggested a danger that evidence would be destroyed in
the face of compulsory process. And there is no basis for any
assumpr.ion that the press generally would defy the law by destroy-
ing evid';nce that has been requested by subpoena or similar process,
in the face of crim.inal penalties for such conduct.
«i 393 U.S. at 133-84.
31
207
Lav; enforcement officials can follow procedures that
inciuds no'-ice and opportunity for an adversary hearing
without impairing in any way legitimate law enforcement
interests. Experience with civil discovery and criminal
subpoenas shows conclusively that it is feasible to obtain
evidence by means that permit orderly assertion of ob-
jections and effective containment of the materials dis-
closed. Use of such means will not deprive law enforce-
ment officers of any evidence to which they are legally
entitled; at most, it will briefly postpone access to that
e\idence until entitlement can be determined by an im-
partial judicial officer in light of the facts known to all
of the parties.^- In this respect the procedural issue here
contrasts markedly with the assertions of substantive
protection for news gathering that were made in cases
like Branzburg v. Hayes, supra, and Pell v. Procunier,
supra. Respondents here seek only a fair opportunity to
assert already recognized legal protections in advance of
disclosure of protected materials. They can be afforded
that opportunity without depriving law enforcement offi-
cers of any evidence to which they have been heretofore
allowed access.
The subpoena procedure required by the courts below
affords the minimum procedural safeguards consistent
with the First Amendment and the decisions of this Court.
It is certainly within the remedial power of the federal
courts to require that procedure."' The Constitution does
not, of course, prescribe the precise manner in vhich
notice and an opportunity for hearing must be provided
or the label to be given to the procedure. Public agencies
retain the flexibility to adopt procedures that wHlll accom-
" See 86 Hai-v.L.Rev. 1317, 1333 (1973).
"5ee Bivens V. Six Unknown Named Agents, 403 U.S. 388
(1971); Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1 (1971).
32
208
modate their needs to constitutional requirements. ' The
guiding principle, established by this Court's decisions
and adopted by the courts below, is that governmental
seizure of information in the hands of the press must be
preceded by notice and opportunity for an adversary hear-
ing. "[Tjhere is no place within the area of basic free-
dcm.s guaranteed by the First Amendment for [ex parte]
orders where no showing is made that it is impossible to
serve or to notify the opposing parties and to give them
an opportunity to participate." Cai^oll V. President &
Commissioners of Princess Anne, supra, 393 U.S. at 180,
II. THE CIVIL RIGHTS ATTORNEY'S FEES AWARDS
ACT OF 1976 AUTHORIZES THE FEES AWARD
IN THIS CASE.
In Alyeska Pipeline Service Co. v. Wilderness Society,
421 U.S. 240, 262 (1975), this Court held that "the cir-
cumstances under which attorneys' fees are to be awarded
and the range of discretion of the courts in making those
awards are matters for Congress to determine." Con-
gress reached just such a determination in the Civil
Rights Attorney's Fees Awards Act of 1976. 42 U.S.C.
§1988 ("the Act")." As Senator Tunney stated in in-
troducing the bill before the Senate, "The purpose and
effect of [the Act] is simple":
"[I]t is to allow the courts to provide the tradi-
tional remedy of reasonable counsel fee awards to
private citizens who must go to court to vindicate
"^ S^e Freedwnn v. Maryland, supra, 380 U.S. at 58-60.
"^See 122 Cong. Rec. H12,159 (daily ed. Oct. 1. 1976) Remarks of
Rep. Drinan) ; id. at H12,161 (remarks of Rep. Railsback) ; id. at
H12.16r; (remarks of Rep. Kastenmeier;) ; id. at H12.165 (remarks of
Rep. Seiberiin<?) ; 122 Cong. Rec. S16,251 (daily ed. Sept. 21, 197(5 »
Oemnrks of Sen. Scott) ; id. at S16,252 (remarks of Sen. Kennedy) ;
122 Cong. Rec. S16.481 (daily ed. Sept. 22. 1976^ (remark.- of Sen.
Hathaway); 122 Cong. Rec. Slfi,491 (daily ed. Sept. 23, 197G) (v(^-
mark.s of Sen. Tunney) .
oo
209
their rights under our civil rights statutes. The
Supreme Court's recent Alyeska decision has re-
quired specific statutory authorization if Federal
courts are to continue previous policies of awarding
fees under all Federal civil rights statutes. This bill
simply applies the type of 'fee shifting' provision
already contained in titles II and VII of the 1964
Civil Rights Act to the other civil rights statutes
which do not already specifically authorize fee
awards." "
Congress plainly intended that prevailing plaintiffs
should, barring special circumstances, recover attorneys'
fees under the Act. The language of the Act closely
parallels the attorneys' fees award provisions of Title II
of the Civil Rights Act of 1964 and of the Emergency
School Aid Act of 1972." In decisions interpreting the
language of those two statutes, this Court has held
that "the successful plaintiff 'should ordinarily recover
an attorney's fee unless special circumstances would
render such an award unjust.* " *' Congress cited those
decisions as incorporating the approach it wanted courts
to take in construing the 1976 legislation.
69
8< 121 Cong. Rec. 814,975 (daily ed. Aug. 1, 1975) . See also 122
Cong. Rec. H12,154 (daily ed. Oct. 1, 1976) (remarks of Rep. Rails-
back) ("[9]o what we are really doing is codifying the practice that
was going on prior to the Ahjeska case") ; id. at H12,159 (remarks
of Rnp. Drinan) ; id. at H12,161 (remarks of Rep. Railsback) ; id. at
H12,163 (remarks of Rep. Kastenmeier) ; 122 Cong. Rec. 816,252