press. Its central mission is as an instrument of accountabilit.v. a watchdog over
the performance of the media in their indispensable role as vehicles of informa-
tion and illumination for the American people. To this end. it receives, investi-
gates and assesses complaints from any individual or group alleging unfairness,
inaccuracy or breaches of ethical standards by wire services, newspapers, news
syndicates, news magazines and television and radio networks or stations.
Along with this monitorial function goes a constant effort by the Council to
fortify the principles of the First Amendment and to protect the nation's news
419
organizations against unfair attack. The two goals are intertwined. Indeed, the
members of the Council believe that tlie more fully they can achieve their i)ur-
pose of providing to those who feel aggrieved by abuses of the in-ess, a sense that
there is a responsive place to go for evaluation and redress of their complaints,
the stronger will be public supimrt for the guarantees of freedom of the press
that are a foundation stone of the United States Constitution.
I make that overlong pi-eface to my testimony simply to iinderscore the fact
that the Council, made up as it is of perst)ns representing a broad range of social,
economic and political backgrounds, attempts to take its positions on matters
affecting the press out of a concern for the total public interest rather than for
those of the press alone. In the legislation under consideration at these hearings,
our endorsement reflects a strong belief that the proposed bill meets this test of
benefit to the total commuiuty as well as the press.
The decision of the United States Supreme Court in Zurclicr v. Sfnufonl DaiJij
represents a substantial whittling away of the iirotection the Fourth Amendment
was supposed to furnish to all citizens against unannounced raids on their homes
or offices by law-enforcement officials armed with search warrants. It is true
that the retreat from adequate safeguards under that amendment had begun
with the interpretation the Court gave to it in the Hayden Case in 19{>7.
I leave it to Professor Dorsen, whose competence to analyze the legalities is
infinitely superior to my own. to develop in detail how alarming has been the
erosion of one of our most treasured constitutional protections under the com-
bined force of these two decisions. Even to a layman, however, it is clear that
the nation's highest court is now iiroceeding on the strange doctrine that those
who are deemed by the police to be innocent of any direct or indirect involvement
in a crime are, by that very fact, more vulnerable to search and seizure via ex
parte proceedings than presiuned culprits.
Justice Stewart, in his penetrating dissent In the Stanford Daily case, points
up how questionable, on any grounds, is the offensive intrusion on the privacy of
countless ordinary citizens permitted by the green light the Court has now given
law-enforcement officials to barge into anyone's premises and march off witli
anything they feel will be of help to them in their investigative activities.
The same topsy-turvy logic the Court majority has used to justify this police-
state approach is used to vindicate the issuance of a search warrant where the
police suspect that information of possible benefit to them in reference to the
commission of a crime reposes in the files of newspapers, broadcasters or other
news agencies. The Court makes passing obeisance to the fact that the Fourth
Amendment was born largely out of the conflict between Crown and press in Co-
lonial days. It also reiterates its 1965 declaration that the rules governing issu-
ance of search warrants must be applied with "scrupulous exactitude" where the
material sought might be protected by the First Amendment.
Yet, in the face of these recognitions that the Fourth Amendment stemmed in
important measure from the need of the press for freedom from state domina-
tion or intrusion, the Court has resorted to a particularly tortured line of rea-
soning to explain why it feels preeniptory search warrants might often be pref-
erable, in cases involving raids on the press, to the due process approach of sub-
poenas calling on the newspaper or broadcaster to turn over specified documents
or information.
The essence of this explanation is that the shield laws enacted by twenty-six
states to protect reporter and editors against being required to disclose confi-
dential sources might give the press a chance to argue against compliance with
a subpoena whereas such objections would, in the Court's words, be "largely
irrelevant to determining the legality of a search warrant." By this flight into
Alice in Wonderland, the nation's ultimate tribunal converts into an excuse for
tightening restrictions on the press the very laws the states have adojited with
the express purpose of rescuing tlie press from the twilight zone create<l by many
recent judicial rulings limiting tlie ability of reporters to carry forward their
necessary investigative mission without being impressed into involuntary service
as agents of the state.
I>et me not appear to be overdrawing the peril we see in the Court's decision.
The traditions and the character of the law-enforcement personnel in New York
State are such that none of us envisages a tidal wave of stonn-trooper raids on
newspapers or television stations or on the homes of their corre.'jpnn dents or
officials. Xor do we see the knock on the door becoming widespread so far as any
vast number of innocent citizens is concerned. But we do envi.'^age a real drying
up of sources of information under the cumulative impact of one sign after
42-190 — 79 28
420
another from the Courts that the full force of the State will be used to intimi-
date the press into betraying those who supply it with information. And we
recognize, as I know all of you do, that restraint in the exercise of power is
never universal. I will confess that is a maxim that applies to the press as well
as to law-enforcers. I do not find it worthy of applause in either setting. That is
one reason I am delighted to be associated with The National News Council.
I am delighted, too, to see in the canon recently approved by the House of
Delegates of the American Bar Association on fair press and free trial a welcome
tui-u toward recognition of the need for openne.ss in criminal trials, in sharp
contrast to the repressive philosophy of the Old Reardon canon. The National
News Council is already in process of seeking to establish a liais-on committee
with the bar and the bench to help reduce the danger of future collisions in the
application of the often conflicting guarantees provided by the First and Sixth
Amendments. Such a committee could not only give substance to the new ABA
canon but also help avert future Farber cases or raids of the type made on The
Stanford Daily.
But, great as are our hopes for the success of such voluntary cooperation as
an alternative to the present confrontationist spirit, it is our belief that state
legislation to counteract the menacing potential of the decision in Zurcher v.
Stanford Daily is highly desirable. We are not among those First Amendment
absolutists who say that any kind of shield legislation implies a doubt that the
Constitutionmeans what it says about the freedom of the press.
Realism requires us to recognize the unpleasant fact that a considerable fog
currently hangs over the boundaries of the immunity granted by the First
Amendment. Indeed, the utility of shield laws is itself brought into question both
by the New Jersey Supreme Court decision in the Farber case which the United
States Supreme Court has refused to review, and by the oblique references to
shield laws in the Stanford Daily decision. Again I leave it to Professor Dorsen
and other experts to explore all of those areas with you.
My own belief is that the proposed New York State law would provide a
des-irable safeguard against newspaper search in the absence of compelling
reason to believe that a criminal was harbored on the premises or that the
desired material would otherwise be destroyed or removed from the state. It
does not seem to me that such a safeguard represents an unreasonable extension
to the press of si:»ecial treatment in excess of anything ever contemplated within
the First Amendment.
Rather, it would be my hope that passage of such legislation would not only
be helpful in its own right but also be a preliminary to legislative consideration
of what additional measures might be in order to guarantee to all New Yorkers
the kind of protection against arbitrary search and seizure that most of us always
used to feel was made secure for us by the Fourth Amendment.
Thank you very much.
Speaker Steingut. Thank you. Mr. Raskin.
Assemblyman Gottfried. Do you have any questions?
I would just like to pursue a couple of points.
The main concern I take it that you have, is the implication of such search
warrants for confidential sources?
Mr. Raskin. AVe go over and beyond that, Mr. Chairman. In the case of a raid
that was made on a California radio station, the presence of the police so
disrupted the organization that for eight hours that station was really in a
shambles. So that, just in the performance of normal day-to-day duties, quite
apart from the drying up of news sources, which we envision as a primary source
of concern, the fact that the police can barge into a newspaper office or a radio
or television statiim is of it.self a concern just in terms of their ability to operate,
to meet their deadlines, to get on the air as they should.
Assemblyman Gottfried. Do you have any answer as to how pervasive or
exclusive a problem we are dealing with? It doesn't necessarily argue there
should or shouldn't be legislation. How common is this sort of thing?
Mr. Raskin. From our knowleilge of even this most recent period, in which
cases have tended to surface, it remains a very isolated problem.
And as I attempted to say, out of our very great respect for the whole process
of law-enforcement in New York State, we have no reason to be extraordinarily
apprehensive of the dangers here. But the license that the Supreme Court has
given could itself be an encour.-igemont to police officers and to the Courts to
start moving in cases in which there is no demonstrated need for the support
evidence, or indeed whei'e the existence of the material is very cloudy.
421
I think it would be extremely helpful as a deterrent to close that door through
legislation, but I would not be honest to pretend at this point that we see tlie
forces of storm-troopers marching across the land.
Speaker STiaxorT. Witliout that, just on the present TTnited States Supreme
Court Decision, without another standard set by the state as suggested in my
bill, what effect do you think that would have on news gathering and investiga-
tive reporting?
Mr. Raskin. I think. :Mr. Speaker, that it would have a very destructive effect.
I think what remains of the Fourth Amendment, both in its application lo
the press and I regret to say to tlie population as a whole, that the Supreme
Court — again I defer to legal experts who will allow me as witnesses, and
who are obviously vastly more competent to comment on this area — that there
is really very little left of it. If you read both the language, and even more
important, the kind of thinking tliat is embodied in the majority opinion, there
is a basis for fear tliat any person, whether it be a government employee or a
citizen of any kind. With information he or she wants to impart to the press
that could contribute to overall public knowledge of some damaging situation
anywhere in the society, might be inhibited from doing so. Because his own
job or future, or even personal safety might be in jeopardy if he were dis-
closed as the source, the potential informant might feel "I just can't, I don't
now have the kind of assurance I need that this reporter, however principled
a person he is, will be able to stand up to the pressures on him." In this case
of search and seizure, it is not even a matter of anybody standing up. The
police just swoop down and take whatever they want. So if there is no shield
law against such search, anything in the tile becomes vulnerable. On that
basis many feel that reporters will just stop taking notes altogether.
I always hesitate to get melodramatic about seeming to overdraw the implica-
tions of these things. Yet both in the approach of the reporter and in his ability
to build up tiles that would better enable him to fulfill his mission of serving
the public and servicing his readers, and in the approach of these who might
have information to give. I think the present Supreme Court decision is a de-
terrent to people to come forth.
Speaker Steingut. Are there an.v — in this short period — are there any in-
stances that yoii can relate to us that have come to your attention where,
because of that decision, sources of news stories have dried up?
Mr. Raskin. I am sorry to say I know of none. I have heard second hand
of people who feel that their sources have now become much more reticent
about talking, or who have said just "I just can't talk to you, I am fearful
under the combined impact of this decision and the Farber case," but I know
of no such cases out of my own direct experience.
Of course, we, in the last couple of months, haven't had any newspapers in New
York. I don't want to be unfair to the interim papers, because they are doing a
great job, or even to our Australian Import, but the operation of the press
has itself been restricted by factors other than the Supreme Court decision
in the recent period.
Assemblyman Gottfried. One final question I would liketo explore, and that
is your concern is oliviously primarily with the press, but there is a broader
collection of concerns here, one of which is the .so-called "third part.v searches"
in general, and a related aspect is third party searches that involves some other
area of privilege aside from the press privilege. There are oth-ers that derive
from the Constitution, such as the right to counsel, and others that have been
created by statute.
Do you have any feeling one way or the other, as to the extent to which any
legislation ought to jtrotect tliose other areas, as well as the press?
Mr. Raskin. Well. I have to say that our council at the time it considered
the Stanford Dnihj decision, addressed itself to the broader implications and
to the desirabilit.v in the view of many mr-mbers of tlie council, of legislation
that would go — corrective legislation at the State, and at the Federal level as
well, that would go Iteynud the j)rotection of the press. .\nd it was felt that
our Council ought to limit itself, while saving in its resolution that the S^fnnford
Daily decision had brought up very sharply the desirability of legislative
consideration for broader protection to cover all citizens. We felt that under
the chai-ter of the News Coimcil we had to confine ourselves to a specinl plea
for such i)rotection in suDjiort of the press, but as indicated in my own testimony,
and I know it reflects the view of a considerable portion of our Council, there
certainly is usefulness in exploring broader safeguards. Of course, its a difficult
422
aroa to got into. Even when limited to tlie press there will, of coures, be some
objections to the desirability of it. We feel the need is clear in the case of the
j)ress. I have to say honestly, I feel its clear in terms of the protection of the
genei'al citizen, as well, but we have abstained from any specific recommendation
on that, simply out of a view that we don't want to exaggerate the degree of our
omnLseicnce in all tields.
Asscnililynian Gottfried. Okay.
Arthur, do you have anything?
Richard?
Mr. GuKKNBERG. T tliiuk there is a growing sense among members of the press
that there is an animus on the part of the Courts toward the press. I wonder if
you feel that's true, and if so. why do you think that's happening?
Mr. Raskin. Well, I think that at both the State and the Fedei-al level, an in-
spection of many recent decisions makes that an understandable feeling — so
much so, that the head of the American Newspaper Publishers Association just
the other day was inveighing against the imperial judiciary. Nevertheless, I feel
that my colleagues of the fourth state who feel very genuinely on this subject,
tend sometimes to get a bit carried away.
Our Council as a body, found extremely refre.shing as a corrective to the view
that the Courts and Bar are really carried with a great animus and hostility
towards the press, the recent canon on fair trial and free press of the ABA,
which does attempt to balance rights in very e(iuital»le fashion. It is true, how-
ever, that many in the Bar and Bench do feel the press is overbearing, that it
misuses its power. I wouldn't say this is a felling confined exclusively to jurists
or lawyers, but unfortunately is a widespread feeling in the community.
The primary reason why our Council exists is to try to provide a forum for
press accountability. We don't believe that any c-orrective ought to be estab-
lished through governmental restraint on the press, through censor.ship or other
forms of governmental review. That is why our body functions. The thing that
has been most encouraging to us as an antidote to the feeling that there really
are beginning to develop, most unfortunately, adversary relationships between
the Courts and press, far beyond anything that is justified, is this new canon of
the American Bar Association. I regret to say it has received very little atten-
tion, and yet to me it seems a very wholesome expression on the part of the'
most representative bodies in the Bar, endorsed overwhelmingly by its House of
Delegates last August at the Convention here in New York, as an approach
to the problems of the First versus the Sixth Amendment, the fair trial of free
pi-ess issues.
That canon, drawn up by a Committee of the Bar headed by U.S. Court of Ap-
peals Judge Goodwin of Portland, Oregon, and subscribed to by the full Commit-
tee, sounded almost as if it had been written by a committee of the American
Society of Newspaper Editors. That is how much receptivity it had to the notion
that Criminal Court proceedings and trials proceeded best in the atmosphere of
openness — one in which there were no closed hearings, pretrial or otherwise, nO'
sealetl documents and minimum restrarnts on the freedom of lawyers or court
personnel to talk to the press. No prior restraints whatever on publication of
material in tlie hands of journalists.
It was clearly a quite remarkable document, and made more remarkable by
the fact that this accent on openness was predicated not primarily on the needs
of the i)re.ss or the right to the press under the First Amendment, but on the Sixth
Amendment consideration that in terms of assuring a fair trial, not biased in
favor of tlie defendent or against him, openness was your best bet.
So we at tlie Council are trying to build on tlie sound foundation that canon
provides in the hope that some cooperative mechanism can be developed between
press and bar.
Just one interesting thought which may never go anywhere. One of the Judges
who was active in the formulation of this Code, suggested to me that much of
tlie (lifficidtv with the I'arhcr case mislit have been avoided had there been in
the State of New Jersey some sort of hot line which could be used by Judges
called on to make a decision to such cases. They could go for guidance to exiierts
designated by the judicial conference or the Bar, jieople versed in First Amend-
ment cases.
What I am getting at, is the recent Farber trial — maybe if they had waited
until they made a determination on the issue, maybe Farber never would have
.gone to jail, and the case wonUl liave been in a very different framework.
I certainly recognize the abundance of evidence to support the motion that
423
there is a very bad relationship at the present time and one of our hopes is that
iis a Council we may could do a little to help it get better.
Assemblyman (Jottfkied. 1 might note that we, in the Assembly, have also
since 1975 when we had a new majority coming in under Mr. Steingut, iimngnr-
ated a similar oinnniess in our proceedings. We have always been obviously open
on the floor, and we are one of the group of legislators in the State that allows
journalists and cameras in on our Flom- I'roceedings, liut we have also opened
up for tlie first time our committee meetings to the press and public, with a vex-y
«alutory effect.
If there are no further que.stions, I want to thank you very much for your
testimony here.
'Sir. Kaskix. If I may, I would like to leave a copy of the resolutions, statements,
tliat the Council adopted on this case and also a very elocpient supplemental state-
ment made by Irving Dilliard, former Chief Editor of the St. Louis I'ost Dispatch,
who is a charter member of our Council, who did not attend that meeting because
of eye surgery.
Speaker Steixgut. Do you have extra copies?
Mr. Raskin. Tes.
Assemblyman Gottfried. We will have that included in the record of the
Ilea ring.
Mr. Raskix. Tliank you very much.
Assemblyman Gottfried. Thank you.
Our next witness is Professor Norman Dorsen. in-ofessor of law at N.Y.U. Law
School, and Chairman of the American Civil Liberties Union.
Mr. DoRSEN. My name is Norman Dorsen. I am a professor of law at New York
University Law School, where I have taught constitutional law for almost
eighteen years. I am also the Chairman of the Board of Directors of the American
€ivil Liberties I'nion, and I am testifying today on behalf of the New York
affiliate of the ACLU.
I first would like to congratulate the Assembly Code Committee, chaired by
Mr. Gottfried, for holding these hearings. The subject is an important and press-
ing one. We have recently had many public issues involving tlie cherished right
to privacy and free expression, but none I think is of more significance than the
ouestion brought to the fore last May by the Supreme Court's decision in Zurchcr
V. Stanford DaUy. 98 S.Ct. 1970 (1978). As I will try to show siiortly, the Civil
liiberties T'nion regards the ruling as a particularly grave threat to the rights of
Americans. Indeed, within days after the decision, the National Board of Direc-
tors inianiniously condemned the decision and urged promi)t legislative rectifica-
tion. It is therefore most timely that we are here this morning.
As the Committee knows, in the Znrchcr case, a narrow majority of the
Supreme Court sharply restricted its interpretation of the Fourth Amendment
right of the peojtle to be secure in their persons, houses and papers. The decision
creates a double danger: first, it i)ermits unannounced searches of places owned
and occupied by third parties about whom there is no probable cause of criminal
involvement; and second, it eliminates First Amendment safeguards of the
newsgathering process against broad governmental searches.
Tender Stanford Daili/. no file, desk drawer or attic is insulated from surprise
l>)licy scrutiny. If the offices and houses of innocent people can be searched
without notice whenever the government says tliat the.v might contain private
papers relevant to a criminal investigation, there is not a newspaper, a bank,
a store, a doctor's office, a law firm, or a private home that any longer can claim
the full protection of the Fourth Amendment.
T'nfortunately the Stanford Daihi decision is liut another step — jierhaps the
most dangerous and far-reaching — in a series of recent Supreme Court decisions
weakening the privacy rights of American citizens. Two years ago. for exami)h\
the Court ruled that a pers-.))! has no legitimate privacy expectation regarding
liis bank records, on the ground that the records Itelong to the bank and a per-
•son in opening an account accepts the risk of disclosure to the government.
rvitrd Sitntrs v. Miller. 42r> I\S. 4?.r) n970).
The same year, the Court upheld a search warrant which in addition to
authorizing the unannounced seizure of .specific papers, also authorized the
potentially boundless seizure of "other fruits, instrumentalities, and evidence
of crime at this (time) unknown." Andrescn v. Maryland, 427 U.S. 4G3, 479-80
(1976).
Tlie most recent Supreme Court term further eroded tlie i)rivacy right of
individuals. The use of i)en registers, which record the nural)ers d'aled on tar-
geted telephones, was held not to be an "Interception" of communi •nations gov-