privacy or the first amendment on the other hand.



406

Let me ask you one policy question here. In Stanford DalJy^ as you
pointed out, the Court wanted to preserve the photographic records
and make them available to the police.

The basis for preserving the records is the public interest. A crime
had been committed against the public.

But if, indeed, you dry up the source of this information and thus
make it impossible for investigative reporters and prosecutors and
investigators themselves to have it at all. is it not self-defeating from
the standpoint of what is really in the public interest ?

Mr. Delaxey. I think you are right, especially when you are talking
about what the courts have called "mere evidence." The photographs
in the Stanford Daily case only corroborated what the police had seen
themselves when they wore beaten o^er the head during the riot. So,
it was duplicative evidence.

If in the process of getting that repetitive or duplicative evidence
they dry up a lot of sources for others matters, and if you have people
not coming in to report on what they know, then you are in a fix.
Something has been dried up.

By the way, I should mention this. Mr. Greene, past president of
IRE, when I told him what my thoughts were, said there was one thing
that he wanted the Congress to know for sure. That was that we must
be aware that investigative reporters are very interested in dealing
with dnig problems and organized crime problems in this society. In
protecting the rights of the press we do intend to keep before us that
the public has a real interest and the press has a real interest in
justice being done in these criminal matters.

I appreciate your point that we must not try to ignore that aspect.
"We must give it the full impact that it deserves.

Senator Bayh. The very nature of investigative reporting is to ffet
at the truth and get the facts on the table so that those who are guilty
of violating statutes will be brought to justice as the law requires.

Gentlemen, your statements have been nght to the point.

"What you have holjied us to do in a meaningful sense is to show
that the decision made by the Court has had or could have a very prac-
tical impact on first amendment rights as well as the practical enforce-
ment of the laAvs designed to protect the public. This was basically the
concern of the Court m the Stavfoirl Daily case.

It is a real inconvenience for you to come over here but I want to tell
you how much we appreciate your presence. "We want to thank you
very much.

Our last witness this morning is Assemblyman Eichard Gottfried
from the New York State Assembly. He is chairman of the code com-
mittee for the assembly.

I appreciate your being here. I hate to suggest this to you but, unfoT'-
tunatoly, T have just recei\'od a message that T will have to leave. I
will ask my chief coimsel. Afr. Faley, to conduct the hearings further.
I will look forward with interest to reading your testimony. I apolo-
gize but please proceed. I will now ask IVfr. Faley to conduct the
hearing.

[The prepared statement submitted by Mr. DeLancy follows:]



407

Prepared Statement of Edward O. DeLaney

Mr. Chainuan, members of the committee : My name is Ed DeLaney, I am an
attorney practicing in Indianapolis, Ind., and serve as counsel to Investigative
Keporters and Editors. Inc. ("IKE"). IRE represents more than 500 individual
reiwrters and editors who have a particular interest in investigative reporting.
IRE is an educational organization whose purpose is to educate journalists in the
methods and responsibilities of investigative reporting and to educate the public
to a greater understanding of the importance of this work.

On behalf of IRE, I would like to thank you for tlie opportunity to comment on
the ramifications of the Supreme Court Decision in Zurchcr v. Stanford Daily,
de<ided on ^lay 31, of this year.

IRE is in substantial agreement with the comments made before this committee
by Jack (\ Landau of the Reporters' Committee for Freedom of the Press on
July 13. It would be diflicnlt to improve upon his analysis or that provided by the
American Civil Liberties Union. AVe will attempt merely to point out several mat-
ters that we feel should be of particular concern to this Subcommittee and that
bear some further attention.

I. WHAT the STANFORD DAILY CASE TELLS US

Stmtfnrd Daily arose when local law enforcement officials obtained a search
warrant to .search the Daily's office for negatives, film and inctures depicting a
disturbance in which several police officers were injured. The Daily's employees
were not alleged to be involved in the distiirbance but rather to have taken photo-
graphs that might help identify certain potential defendants. Tlie Supreme Court
recognized that in searching for these photographic materials, the police "offi-
cers apparently had opportunity to read notes and correspondence." 56 Ij. Ed. 2d
at 532. Sul)sequent to this search the Stanford Daily brought a civil action under
42 U.S.C. § 19.83 and obtained declaratory relief. The District Court held that the
Fourth aTid Fourteenth Amendments forbade the issuance of a warrant for a
searcli for materials in possession of a non-suspect without probable cause to
believe that a subpoena duces tecum would be impracticable. That Court held
that the mere failure to honor a subpoena would not justify a warrant unless it
appeared that the possessor of the objects sought would disregard a Court Order
not to remove or destroy. The District Court held that in the case of a newspajier,
First Amendment considerations would restrict search warrants to rare cases
where a clear showing could be made that materials would be destroyetl or
removed from the jurisdiction and that a restraining order would be futile.
(353 F. Supp. 124, 135.) The Court of Apiieals accepted this reasoning.

A majority of the Supreme Court did not agree witli the lower court's view of
eitlier the First or tlie Fourth Amendment. That is, of course, why Senate Bill
3164 and others have been introduce<l. Those wlio are interested in strengthing
freedom of the press and the interest of all citizens in freedom from unreason-
able searches can learn a great deal from some of the contents of the majority's
opinion. The Court was emphatic in its view that under the Fourth Amendment a
warrant "as a constitutional matter . . . need not even name the person from
whom the things will be seized." (56 L. Ed. 2d at 535). Rather, it only need name
the "places" to be .searched and the "things" sought. Where, as in the case of an
innocent citizen or innocent meml>er of the press, there is no effort to secure
evidence of a crime against the possessor of the evidence then a less stringent
standard of probable cause is acceptable. (Id.)

It is clear from a reading of the decision that the Supreme Court's basic con-
cern is that witli the interest of the State that, that is of the prosecution. Thus
the Court concludes that the delay involved in obtaining a subpoena could "ea.sily
result in tlie disappearance of the evidence" since "it is likely that the real cul-
prits will have access to the property." (Td. at 5.30). The Court .'^eeks to avoid
any such results since they might impede criminal investigations.

The Supreme Court is satisfieil that as long as warrant requirements are
applied "with particular exactitude" where First Amendment is.sues are at stake,
there should be no problem. Naturally, the press is not so sanguine. More
importantly, reporters are interested in factors that do not appear to weigh
heavily in the mind of the Supreme Court. Thus, the Court concluded that if its
decision might have a "incremental effect" on tlie availability of confidential
sources of the tendency of tlie pr^ss to supress news out of fear of .searches, this
"does not make a consti^utional differenci^ in our judgment." (^d. at 542) In con-
cluding, the majority noted that "Fifth Amendment and State Shield Law



408

ohjoftions that might he asserted in opposition to compliance with a subpoena
are largely irrelevant to determining the legality of a search warrant under
the Fourth Amendment." (Id. at 5-12-43) Having made this statement, the Court
renunds the Legislatures of this country that they enjoy the right to make
"legislative or executive efforts to establisli non-constitutional protections
against possible abuses of the search warrant procedure." (Id.) IRE. like many
other citizens and institutions, simply does not share the Supreme Court's view
of the meaning of either the First or Fourth Amendments. We are not here
because of any desire to turn to the Legislature for protection. Our strength has
always been found in the Constitution and not in the Statutes. However, the
decision of the Supi'eme Court leaves us no choice. Happily, Senator Bayh and
a number of his colleagues apparently share our concern with the First and
Fourth Amendments. This is made clear in the preamble to Senate Bill 3164.

II. WHO DESERVES rROTECTIOX UNDER THE FIRST AND FOURTH AMENDMENTS

It is the position of IRE that the press should seek no special status because
of the decision of the Supreme Court in the Stanford Daily case. Such a privi-
leged position would appear to be out of step with the mood of the populace.
It would obscure the fact that the purpo.«e of the First Amendment is to
benefit the pul)lic both through the individual exercise of the right of free
speech and through the institutions of the press and the broadcast media.

From a legal perspective, the harm wrought by the decision in Stanford Daihf
was first created by the decision in Warden v. Hayden, 387 U.S. 294 (1967 1.
That decision affected all the citizenry, not merely those who were involved in
publishing their views. Hajidcn Tipheld the warrantless search of the home of
a criminal suspect and in pai'ticular the seizure of the suspect's jacket and
trousers which were used for identification at his trial. In Hayden the Court
concluded that the Fourth Amendment did not restrict searches and seizures
to contraband or to "fruits and instrumentalities" of a crime hut permitted tlie
seizure of 'mere evidence." Implicit in this decision v,-as the conclusion that the
Fourth Amendment provided no special protection to innocent third parties who
did not have the fruits or instruments of a crime but had some other evidence.
This decision was criticized at the time (1967) because of its implications for
privacy in general and for privacy in one's papers and personal effects in
particular. The full danger of the opinion was not realized imtil the Stanford
Daily case.

Because of the facts under which Hayden arose, the decision was limited
to so called searches incident to arrest. The case did not involve warrants. The
Congress eliminated this distinction in Public Law 90-3."l. (18 U.S.C. § 3103(a) ).
Thus, mere evidence can be obtained from innocent parties by warrant or by
a proper warrantless search.

III. ISSUES BEFORE THE SENATE

This body is faced with a complex of problems arising from the interrelation-
ship of tlie Zurcher and Hayden cases together with both statutory and con-
stitutional law as they relate to search warrants and subpoenae. The two
most central issues, however, are those as to wliat persons are to be protected
and what information is to be protected. These should be examined separately.

A. The advisahility of a "/•/t.s.9 Onhr 'bill

Even a cursory review of the decisions in Zurcher and Haydrn will show that
those decisions raise serious problems not only for the press, but for the entire
public. These problems deserve solution. It .should be remembered that the First
Amendment guarantees free speech as well as free press and that it when taken
together with the Fourtli Amendment is designed to aid all citizens of a de-
mocracy in expressing their views and in maintaining that privacy which is
necessary to the functioning of an open .society. Yv'hile IRE and its members
woTdd not reject the benefits of a bill designed only to benefit the press or
other writers, it does not see the wisdom in singling out these institutions when
solving what is a general problem. Such a preferred position is prolia]>ly incon-
sistent with the views of a great number of Americans who are wary of (he press
and its performance. More importantly, if the experience with State Shield
Laws means anything, many courts will look with a jaundiced eye at what will
api^ear to be special treatment for those who make a living by writing.



409

JJ. What should he protected?

S. 3164 picks up on the language of the Haijdcn case by requiring, with ex-
ceptions, the securing of mere "evidence" through the subpoena process. Pre-
sumably, such procedures would not be required where the warrant sought went
to contraband, or the fruits or instrumentalities of a crime. This distinction is
well recognized in the case law and deserves maintenance. The "mere evidence"
which would be protected would include notes from interviews, material in the
nature of evidence obtained from potential defendants or witnesses, photographs
prepared by the press or others and other information which would l)e useful
to members of the press or which might be maintained in (he privacy of any
ordinary citizen's home. As Justice Stevens' iwinted out in his dissent in Znr-
chcr "countless law abiding citizens — doctoi-s, lawyers, merchants, customers,
bysranders — may have documents in their possession that relate to an ongoing
criminal investigation." (5G L.F:d.2d at 550) None of these people or their effects
should be subjected to a sudden search.

IV. SOME CAVEATS

In deciding upon its response to Zurcher, the Congress should be aware of
the very real limits of the solutions being considered. Thus, there is reason to fear
the construction that the courts might place upon the phrase "reasonable expec-
tation of privacy." Similarly, the proposed solutions do not meet the problems
created by the lack in many jurisdictions of an effective Reporters' Shield Law.
Nor, is it at all clear how the Legislature can reach the problem of warrantless
searches justified under the basis of exigent circumstances or "hot pursuit." Such
searches can cause as great an abuse as anything noted in the Zurcher case.

The Congress should be mindful of the limited value of a subpoena procedure
when applied to the press. Naturally, a reporter whose files contain the names of
confidential sources, does not want such files ransacked pursuant to a warrant.
The sources would be revealed. However, if the same reporter is subjected to a
subpoena to testify and to bring with him materials identifying his sources, he
may be equally unable to protect those sources. If the Court does riot recognize
or apply a Shield Law, the reporter will be faced with the choice of revealing his
sources or going to jail. That is occurring with some frequency today. From the
reporter's point of view, the subpoena procedure is advantageous over a warrant
in that it gives him a choice. Unfortunately, the choice is far from a happy one.

S. 3164 as drafted restricts the use of warrants where the sought after evi-
dence is "located on or about premises in which the person in possession of the
evidence has a reasonable expectation of privacy." In recent days, the Supreme
Court has rendered a decision that narrows the crucial concept of whore one has
a "reasonable expectation of privacy." In Rakas v. State of Illinois, 47 U.S.L.W.
402.5, decided on December 5, 1978, the Supreme Court concluded that under the
Fourth Amendment, passengers in an automobile who do not own or lease the
vehicle have no expectation of privacy when it comes to a search of a locked glove
compartment or a search beneath the seat of the car. The majority specifically
rejected the notion that anyone legitimately on premises where a search occurs
may challenge its legality. While the Court emphasized that it was not relying
upon arrane notions of property and tort law when determining who could raise
a claim under the Fourth Amendment, it provides little guidance as to what other
basis for such claim might exist other than by reference to "understandings that
are recognized and permitted by society." (Footnote 12) Presumably, the courts
will decide just which notions or understandings of privacy are "recognized and
permitted by society." The Congress might wish to consider what role it could
have in making such a definition effective so as to support the rights of the press
and the public.

Finally, as other speakers will readily admit, there is necessarily some doubt
as to whether a subpoena first policy can he forced upon the states. Zurcher makes
it clear that in the view of the Supreme Court, such a result is not mandated by
the U.S. Constitution.

v. SPECIFIC COMMENTS OX THE DEPARTMENT OF JUSTICE PROPOS.VI,

It should be clear to all who support the role of a free press in our society,
that the effort of the Department of .Tustice to respond to the Stafford Daily
case is most welcome. The Administration's Bill, as recently outlined, meets
many of the concerns of the meml)ers of the institutional press at the same time
that it reaches out to other writers mid researchers. The following reflections
are made more in the nature of friendly commentary than criticism.



410

As noted above, any bill that would do less than protect all citizens from the
impact of Stanford Daily and Ilaydcii is not fiUly adequate to protect the free
speech-free press riglits of citizens. Nor does it address itself to the strong
privacy interests of those individuals who enjoy testimonial privileges in their
roles a doctors, lawyers, accountants, and so forth. The Administration's pro-
posal, as luiderstood, will not deal witli the complex problems of the protection
of confidential sources from subpoenae properly issued in compliance with all
the requirements of law. That problem must be faced.

To the extent that the Administration's proposal focuses on people rather
than places or things, it introduces a notion new to Fourtli Amendment juris-
prudence. The reception such a notion may face in the courts is far from clear.
Experience dictates that judges look with disfavor upon new "privileges" what-
ever the motivation of the Legislature in providing them.

IRE looks forward to the continuing discussion of these important First and
Fourth Amendment problems. No subject should command a higher priority in
the minds of the Congress.

TESTIMONY OF HON. RICHAED N. GOTTFRIED, ASSEMBLYMAN AND
CHAIRMAN OF THE CODES COMMITTEE, NEW YORK STATE
ASSEMBLY

Mr. Gottfried. Thank you.

My name is Richard N. Gottfried. I am the Xew York State Assem-
bly member representing the 67th assemblj' district on the west side
of Manhattan. I am also chairman on the assembly's committee on
codes, which has jurisdiction over legislation relating to criminal
justice, including police searches.

In Mav of this year, the U.S. Supreme Court, in Ziircher v. Stan-
ford Daily, 436 U.S. 547, 98 S. Ct. 1970, 56 L. Ed. 2d 525, May 31, 1978,
held in a 5-to-3 decision that the fourth amendment to the U.S. Con-
stitution does not prohibit the police from conducting, pursuant to
an ex parte warrant, an unannounced search of any premises, even if
no one associated with the premises is suspected of criminal involve-
ment, and even if the premises are those of a new organization. The
Court ruled that a search of such premises is permissible under the
fourth amendment so long as the police have probable cause to believe
that evidence of crime can be found there.

The Zurcher decision prompted an outcry in Xew York, as it did
elsewhere, not only from the news media, but from other quarters as
Avell. For Zurcher is at least as much a fourth amendment decision,
jeopardizing the privacy rights of all of us. as it is a first amendment
decision adversely affecting traditional notions of freedom of the
press.

In response to the widespread concern generated by the decision,
the committee on cods of the New York State Assembly, togethr
with Assembly Speaker Stanley Steingut, held a public hearing on
October 26, 1978, to investigate the implications of Zurcher for free-
dom of the press, personal privacy, and effective law enforcement in
Xow York. A number of prominent news media figures, legal scholars,
and law enforcement personnel either testified at the hearing or sub-
mitted written material. A volume containing their testimony and
statements is being pul^lished, and T will be happy to supply this com-
mittee with a copv when it is completed.

Mi: F.\i,F.v. Without o])jection, the record will be held open to
receive that.



411

Mr. Gottfried. Our hearing demonstrated clearly and concretely
the worrisome implications of the Zurclxev decision.

I turn now to the dangers for the press and the public. In the context
of the news media, the concerns are well known. Confidential in-
formants, who are crucial for effectiv news gathring, will be less
likely to impart their information to reporters for fear that their
identities and the information they have supplied, often at great
personal risk, will be accidentally or intentionally discovered in the
course of a police search of a news organization's files. We would all
experience a loss as a result.

For example, imagine the impact on our history if, in late 1972,
agents of the Kixon Justice Department had seized the files of Wood-
ward and Bernstein under the guise of searching for evidence per-
taining to th(i Watrgate break-in.

Moreover, such unannounced police searches will have an unavoid-
ably disruptive effect on the entire news dissemination process gen-
erally, particularly in view of the tight deadlines under which most
news organizations operate.

The troubling implications of Zurcher for the public generally, how-
ever, are perhaps less well known, and certainly have received less
attention, but are nevertheless every bit as grave. Just as rummaging
police searches of newsrooms threaten the confidential relationship
between reporter and informant, they jeopardize in precisely the same
way the confidential relationships between attorney and client, doctor
and patient, priest and penitent, and husband and wife.

Yot, Zurcher permits unannounced searches of the offices and files
of attorneys, doctors, and priests, and the homes of all of us, even
when no one associated with these premises is suspected of criminal
involvement, as much as it does newsrooms like the Stanford Daily.

Furtliormoro. the peace, privacv. and quiet enjovment of our homes
and offices are equally subject to disruption by such searches. Indeed,
since it appears that newsroom searches are comparatively rare, or
at least they were before Zurcher was decided, Zurcher's true impact
win fall most frequently on those who have no connection with the
media.

I turn now to the l)roa(l scope of leo-islation needed. For these rea-
sons. I feel strongly that any legislation considered by the Congress
or State legislatures sliould be broad enouo-h to protect all citizens who
are tliemselves iminvolvod in crime, and not simply news organiza-
tions. Commendably, the bills introduced by Senators Bahy, Dole, and
otl'ors a]:)pear to recognize this need.

T^nfortunately, the Carter administration's proposed legislation
does not. To be sure, it covers a broad class of people who need pro-
tection — those enffaged generally in first amendment activities. Per-
haps every American would be well advised, under the administra-
tion's proposal, to ]:)lace a sign on his door announcing that the occu-
pant of the premises is AvorkinG: on his autobiography. While the
administration's proposal would create practical problems for law
enforcement in trying to determine in advance who is covered, it fails
to protect the rest of us. wlio may not l)e engaged in first amendment
activity but who need the protection as much or more.

liather than focusing on tlxe first amendment context, any legisla-
tion should be cast in tenus of" the lourtli amendment privacy in-



412

torests of all citizens. This is particularly so since, realistically, legis-
lation that satisfies the needs of only one constituency, and the most
vocal and articulate one at that, may well result in postponing indefi-
nitely the passage of legislation to protect tlie less vocal majority. I
think that is particularly important to stress.

Ordinarily in legislation very often we take the attitude that half a
loaf is better than none. In this particular instance, half a loaf may
well not be better than none and may well postpone or make impossible