Journal wrote recently '"it's possible that many judges have fallen into a clois-
tered fraternity that resents any outside attempt to second guess its actions."

Certainly it would bother you, if as a reporter you sat in a New Jersey court-
room and heard a Federal Judge Frederick Lacey, without any regard to fact,
without any evidence that bore out what he was saying, argue that Myron
Farber's book manuscript (which Judge Lacey hadn't seen) contained the very
information sought unsuccessfully from Farber by the Courts. When Lacey
accused Farber of "standing on an altar of greed" there was an emotional quality
in his voice that no black and white transcript could reveal.

Too bad there was no television there to record how Federal Judge Lacey
looked, how his voice sounded, as he excoriated the petitioner, how he turned a
bail hearing into an inquisition — until Farber's attorneys pulled out, afi'aid that
th*nr client might, instead of getting bail relief, receive some new penalty.

Interesting man this Lacey. We remember when he was a prosecutor on the
make, ambitious, talking freely to reporters, including this one, leaking informa-
tion, now high and mighty.

And we have the recent incident reported by Stepel Brill in Esquire of bow
the Chief Justice of the United States came up to Brill on a street in Washing-
ton, and expressed delight over Farber going to jail, and he, Berger asked this
reporter "Do you think you have special privileges like this guy Farber does?''

Clearly, whatever the motives, the actions of the Burger Nixon Court, of
Federal Judge Lacey. make it obvious that key elements of the judiciary are
wagering war against the press.

The important consideration for members of the press is to deal with the
effects of these feelings, these decisions.

Clearly, journalists have a role to play in our society. When the First Amend-
ment says that Congress shall make no law to abridge the freedom of the press,
journalists are thereby assigned a very special function. Tliat function is to
report news and also to act as another check on the operations of government.
When founding Father Jefferson said, "I'd rather have newspapers without a
government than a government M-ithout newspapers." be wns setting a iiriority.

It was the independence of Ibe press that made it possible, just a few years
ago. for a bloodless evolution to occur, for a President to be deposed because the
press exposed his wrong doing.

The impact of the Burger Court's decisions severely inhiliit the press as a
watchdog on government.

Can we in good conscience promise an informer to protect his identity if the
police can at any moment tan our phones, raid our offices, search our desks?

Will we be forced to find secret hiding places, bury notes in the ground so they
do not fall into police hands?

Let us suppose tliis act of circumstauce.s, not unprecedented in the history of
New Y^ork and other large cities.

Let ns assun^e that, at some future time, we have a corrupt mayor and a cor-
rupt police commissioner. Honest cops and civil servants como to us with dainag-



430

ing evidence. We print it or broadcast it. The mayor calls one of his old political
friends, who's now sitting on the bench as a Judge, to sign a warrant to search
our offices. Ostensibly to get evidence for prosecution of a crime, but in reaUty to
tind out who's blowing the whistle on corruption, to take care of the honest city
workers who are trying to reform a corrupt government.

The Constitution,' after all, is bigger than the Laceys and the Burgers. Jeffer-
son's wisdom two hundred years ago is still the best safeguard of our American
democracy.

I am not pleading that journalists are more reliable, more trustworthy, more
honest tlian judges, lawyers, legislators or any other people in public office. It is
simply that, in a society of checks and balances, we have a role to play. If we
are stripped of our Mrst Amendment rights, then there will be no check abstain-
ing the government on these operations of others.

It is not enough for reporters, editors, news people that should pass this
legislation. It is to protect the public against the arrogance and the corruption
that government, unchecked, is heir to.

Thank you for inviting me to express my opinion. I appreciate the opportunity..

Assemblyman Gottfried. Thank you, Mr. Speaker.

Speaker" Steingut. Gabe, I would like to ask this: As you undoubtedly know,
I am not new to this fight on the question of privacy and the rights of press
because of my efforts in the legislature on wire tapping and so forth in the
middle '60s.

But in your statement I assume that you mean to go much farther than the
ability of the press, the ability of the media, not only as a check on government,
but as a check on every aspect

Mr. PRESR^f ATs\ Of .society.

Speaker Steingut. Which is a much broader application, and I tliink it should
be applied in that direction.

Mr. Pressman. Yes. I understand what you are saying, :\Ir. Speaker, and T
certainly concur, the rights of privacy of a citizen who is not a member of the
press or not a member of government is equally safe.

Speaker Steingttt. I am referring to the role of the free press as watch dcxgs. not
only on government not deviating from the legislation — ■

Mr. Pressman. On any other group or individual or corporation, or whatever.

Speaker Steingut. In society.

:Mr. Pressman. Of course, I agree with that. As a matter of fact. I think I
neglected to say, there is even a possibility that you could have corruption in the
judiciary. And the press would certainly have a function to perform in trying to
expose them.

Assemblyman Gottfried. ;Mr. Pressman, one area I would like to pursue with
you is, wliilo the press has a particularly sanctioned statute in constitution, there
are many other groups in our society that some constitutional and other statutory
rights also have protection, such as the doctor-patient i-elationship, lawyer-client,
husband-wife. I think just a general concern on the part of a lot of people over
the prospect that having never been anywhere, never in a commission of a crime,
their homes could be sul)ject to a thorough search, unannounced by the police,
on grounds that there is some evidence, whatever it might be. of a crime in tlieir
home.

What would your feelings be on legislation that would protect, not onlv the^
press, l>ut either the liomes of citizens generallv or particularly those places
such as a doctor's office, that would be closely related to one of the other areas
of protection that we recognize in the law? Is that area also an area that you
think requires recosnition?

Mr. Pressman. I do, but I would want to think about it more before I said
anything.

i came liero, frankly, as a special pleader, and my thinking in advance of
coming here was addressed to our own prol)lem on our business. Certainly T
abhor any attempt to raid private premises, fo go on fishing expeditions in con-
nection with a criminal investigation. T tliink it is very dangerous to issue a
warrant that is too I)road, and where tliere is too little evidence of a crime, that
evidence of a crime could be uncovered.

Assemblyman Gottfried. The law makes a distinction between what is re-
ferred to as "fruits, instrumentalities of a crime or contraitand" on the one hand,
and other evidence on the other hand. Would you be in favor of an all encom-
passing bar on searches of press premises or limiting tliat bar to searclies for
evidence, but permitting, let's say a search for contraband or fruits of a crime
in the area of the pre.ss, that is an important distinction?



431

Mr. Pressman. I really don't think .«?o. I can't think of any precedents, any
sitxiation where there was contraband inside an office, news office.

Ilonestfy, if a reporter is an eye witness to a crime of violence, he's olili^afed to
talk abont it. He can't plead confidential sonrce on something tliat is visible and
you happen to have seen.

If a reporter becomes a criminal and gets involved in dope smnggling or some-
thing like that, I wouldn't want him protected, I want tliat statute drawn for
Iirotection.

However, the function that I described in my brief remarks, and certainly not
to protect criminality, certainly I can foresee, imagine.

As I pointed out. we have no more rights than anybody else in this society. It's
conceivable that you could have a reporter guilty of a crime. But what I think I
Avas addressing myself was to some kind of legislation that would protect us
against wide open searches.

If he came back from Mexico and had rugs he had it in his desk, newspaper
office. I could see an exception to that kind of circumstance, a warrant would be
justified, but if a warrant was previously framed for that purpose, and not just
to look around.

Assemblyman Gottfried. Any other questions?

Mr. Greenberg. Have you, yourself experienced since Zurchcr or any other
decisions affecting the pi'ess before that, or since the Farhcr case, any actual
situation in which an informant or one of your sources has indicated some un-
easiness about imparting information to you from now on or have colleagues of
yours told you that? I know that is a primary concern of the press in this area,
and there is much speculation that sources will dry up. Can you say that's actually
happened so far or do you know of a situation where it has?

Mr. Pressman. No, I don't. However, I think that it is very, very new, and I
can't really asess the situation on that on the basis of time that's gone by. It's
only been since the summer, and the Supreme Court decision. I believe it was Ma.v
the 13th, so I think it's a relatively short time. And I can't honestly say that I
know of any informant that has dried up, but it's much too early.

Assemblyman Gottfried. It's also hard to point to an informer who didn't come
forward.

Mr. Pressman. Yes. that's true.

Assemblyman Gottfried. Any other questions?

Mr. Ryan, do you want to proceed?

Mr. Ryan. I have written down some thoughts here

Assemblyman Gottfried. Excuse me, just a second.

Mr. Ryan. Good morning. My name is Jim Ryan. I'm the investigative reporter
for Xews Center 4. the daily news program on WNBC-TV New York City.

First of all, I'd like to thank the members of the Committee for the opportunity
to be heard on this question.

The Supreme Court, as we know, has ruled that police officers can obtain war-
rants and conduct what Justice Potter Stewart, in a dissenting opinion, calls
'"unannounced raids" on news rooms.

My position on the matter is adequately stated in Justice Stewart's dissent.

In writing the majority opinion, even Justice White points out that the struggle
from which the Fourth Amendment emerged is largely a history of conflict be-
tween the crown and the press.

^lany of the people I deal with are employees of the "Crown" or government.
They are the kind of people that Ralph Nader has called "whstle blowers" —
people who work in government, see something wrong, but can't help themselves
to do anything about it, and who come to people like me looking for help.

Six years ago I worked for the Daily News, which, some of you may remember,
nsefl to be an English Language paper in New York City.

During one prolonged non-strike two colleagues and T worked for severa?
months with "whistle blowers." We wrote a .series of stories in which we reported
that hundreds of people on provisional lines in city govenmient were politicall.v
connected. And that many of them were working not on city business, but on the
then mayor's campaign for president. We reported that a number of these people
were paid through a federal program designed to give jobs to hard-core unem-
ployed people and Vietnam veterans.

Our sources were people in government who saw this going on and came to us —
very nervously — T contacted people in out-of-the-way restiiurants and libraries —
I learned in the service that they'll never find you in the liltrary. I got calls at
home at night from peoi)le in phone booths. These people were family people
anxious to protect their pen.sions while they were protecting their integrity.



432

Some roars ago. not T. bnt a colleague at the Associated Press, got to know
the merchants along a single block in Manhattan. He worked up a story, based
on information they supplied to him, on what the petty bribes to police on this
single block added up to in the course of a year. The total figure was astounding
and the police moved to subpoena the reporter's notes. The AP quashed the sub-
poena and the identity of the merchants was protected from the police officers
who might well have retaliated. Today the police internal affairs unit could
easily obtain a warrant, walk in, grab the reporter's notes and make their case,
but jeopardize the reputation of the reporter and the safety of his .sources.

More recently, at News Center 4. we aired a series of investigative reports on
the way local manpower offices in this area were spending CETA funds.

As a result of our reports, for example, the director of the manpower office in
â– Westchester was removed from office, persons ineligible for their CETA jobs
were removed from the payroll. Official investigations into CP7rA practices were
begun on the local, state and federal level. Much of our information came from
people who worked for the governments that ran these CETA operations.

What would they have done if the city administration and its police had the
opportunity, sanctioned by the Supreme Court, to raid my office and search
through my file.s — never mind the stated purpose of the search. The answer to
that question is they'd never have come to us in the first place. And our stories,
which resulted in the dismissal of literally hundreds of politically connecte<l
people, would never have been written or broadcast. Ju.stice White, in writing
the majority opinion for the court, speaks about "the real world."

Let me say something about the real world of search warrants. Justice White
points out that a general, unspecific warrant is one of the principal targets of the
Fourth Amendment. But the game in preparing search warrants is to make them
MS vague as possible within the bounds of specificity that the Fourth Amendment
says has to be there.

I was talking on Tuesday to a lawyer who used to work with the police de-
partment in obtaining search warrants and he .said that in many cases the
judge involved was less than diligent in signing the warrant.

In one case, about three years ago, the confidential informant for the police
was a prostitute. The judge, a bit tired at the end of a session in night court,
glanced at the affidavit and asked the woman what she did for a living. She said,
"I do tricks." The judge said, "Can you show me a couple?"

P.ottom line : the Judge signed the warrant. The evidence was not where the
informant said it would be.

W'hat do these anecdotes illustrate? I think they show, first of all, that when
Justice Stewart says the threat of a warrant might dry up a reporter's source.9
and curtail the freedom of the press — he's absolutely right.

I think second of all they show that the Court's certainty that local officials
will safeguard First Amendment rights in every case is not realistic.

Thank you.

Assemblyman Gottfried. Thank you.

Mr. Ryan I certainly think confidential sources are obviously very crucial to
the kind of work you and Mr. Pressman engage in. I wonder, can you tell us how
common it is for criminal investigations, prosecutions and convictions to result
from' digging as the press does? That is. a case that resulted in a conviction,,
that would l)e an example of that, does the information that you get from con-
fidential sources fairly commonly result in law enforcement activity of a pro-
ductive kind?

Mr. Ryan. Fairly commonly woiild be too great a frequency. But I think the
situation arises with irregularity where people will come to somebody like me
with infoniiation about criminal activity.

Tlie normal procedure in such a case is to. once you put the story in the paper,
cooperate fully with the various law enforcement agencies. I don't think this
will necessitate a warrant.

Certainly at NBC we work fairly regularly with various law enforcement
agencies tlirough the subpoena process. We are subjtoenaed three or four times
a week, I am told l)y our legal people, and we successfully negotiate a .satis-
factory conclusion of the information that the various law enforcement agencioi?
are seeking through the subpoena process, through the not necessarily adver-
sarial process, but I think more cooperative process between people who are
on tlie one hand law enforcement agency officials, on the other, journalists,
who are in the end working for the same common good.

A.ssemblyman Gottfried "What I am considering here, is that law enforce-



433

ment activities that result in the drying \ip of confidential sources, may in fact
in the long run inhibit law enforcement activities. In other words, if you were
not getting a lot of our whistle blowing type of information, law enforcement
agencies might not get it either

Mr. Ryan. I think that isn't true.

Mr. PRESSArAN. I think it should be pointed out that in our own experience
that Channel 5, particularly through the work of Steve Bauman, who is cover-
ing this as a story right now, law enforcement took, in the nursing home in-
vestigation, in the welfare investigation, after we exposed wrong doing, and
iiftcr we actually pointed the finger in the case of welfare investigtion, we had
tnpe and film, and actual transactions, bribery taking place at the welfare or
out of the welfare center, which ultimately resulted in prosecution by district
attorney in New York County. Now, I think its true, our function is not to
cooperate with law enforcement agencies, but because I think that would be
unfair— that's not the way the society is supposed to work, but its naturally
as a bi-product of journalistic investigations, sometimes that we actually dis-
cover a crime, and in that case, we have to be like any other law abiding
citizen and cooperate.

Speaker Steingut. In other words, Gabe, am I correct in coming to the con-
clusion, that working closely with law enforcement agencies might dry up your
news gathering ability ?

Mr. Pressman. Yes, I think so. I think there are people, there are informants
who will deal with the press, but would hesitate to deal with law enforcement
agencies for their own peculiar moral standards, or sometimes for very practical
reasons that they are afraid that they will be betrayed on the other side.

Mr. Ryan. There are a great number of people in New Y'^ork City, as you well
know, who do not regard the police as their allies, and who look to the media as, I
think, kind of a go-between when they are trying to square themselves with
justice.

Assemblyman Gottfried. Mr. Nicolosi.

Assemblyman Nicolosi. Gabe — as either one can answer — you made some com-
ments in your opening statement regarding the attitude of the Courts toward the
press, and I — let me preface it with this : assuming that a confidential informant
who relied on you would give you certain information, do you have, as a reporter,
the right, other than for an unwritten agreement between the two of you that you
will not divulge his name, his or her name, could you divulge that person's name
if you chose to do so?

Mr. Pressman. I would not choose to do that if the person requisted.

Assemblyman Nicolosi. But there would be no repercussions if you did, legally
I am talking about, in terms of a reporter's relationship with an informant?

Mr. Pressman. No. I think it's a moral obligation. I don't think it's a legal obli-
gation, there is no such law, not to my knowledge.

Assemblyman Nicolosi. Not to your knowledge?

Mr. Ryan. I would say it's a professional o))ligation. If you give a person that
assurance, the person tells you information, and then I think you are bound by
that assurance.

Assemblyman Nicolosi. Let me just follow th.it through, if I might. The Court,
as you indicated, miglit be holding the press in disfavor right now, and tliis is a
way to express their dislike?

Mr. Pressman. That is being psycoanalytical. T am not saying that conscien-
cously that judges have gotten together and decided we are going to give it to
those guys, but there is this evidence of .Justice Burger chortling ncfording to
Steve Brill's stories, which I have no reason to disbelieve, and the Chief .Justice
of the United States who might have to rule on this Farher case expressing an
opinion in the street to another reporter.

As.semblymah Nicolosi. That obviously shouldn't be. But do you feel fh;it that
could come about, and certainly take the tow truck thing going on now in the
city.what has been revealed there with actual on-sight photographing of some of
the inequities and hardshins being caused, but whatever, and report that infor-
mation. T am just wondering whether this is a problem that uerliaps is caused
conscious or unconsciously the Courts to go that way. where .vou receive informa-
tion and — not you, I am saying reporters receive infomiation, and you report on
it that names are divulged. Now, its the beginning of an investigation and certain
inuendos are made against people, no prosecution results, and then the person's
name has been divulged as possibly being involved, suffers som? kind of injurv
as a result of it. How often does that happen?



434

Mr. Pbessman. How often does it occur that inuendos are made? Not too often.
I can't remember any situation like that.

Do you have a specitic one iu mind V

Assemblyman Nicolosi. No. No, I'm just talking about — I'm getting back to
the informant now, where you get information, are you. as a reporter, other than
morally now, required to make an indepth investigation as to what he is telling
you is truth?

Mr. Pressman. Absolutely. You should not use unsubstantiated information.
M'e never used information like that unless we have it checked — unless we have
it confirmed with another source. We don't take one source and we don't — we are
aware of the motivations that human beings have: jealousy, anger or hostility
that an employee might feel for his employer. We are not going to consciously get
into that game.

We are aware, also, sometimes somebody comes forward with bonafide infor-
mation for a motive that isn't so nice. But I think law enforcement deals with
that all the time; that doesn't mean that the crime or the unethical practices
aren't there.

Mr. Ryan. I would just add to that, that any reporter who did go with an
unsubstantiated report that he got from someone who obviously had an interest
in a particular case, and was telling because he either got fired, for example,
from his government agency, or for whatever reason, anybody who would go with
that would not last very long as a reporter.

Certainly if I used Assemblyman Nicolosi as being involved in some sort of
shady deal with the banks and I have no basis for saying that, other than some
witness who happens not to like Assemblyman Nicholosi, and it happens not to
be true, well, you are going to come down my neck, and rightfully so. And you are
going to complain to my boss, and my boss's first question would be "what sub-
stantiation do you have," and I am going to say, "I have this fellow who told
me." Well, obviously, he wasn't telling me the truth. Then he would say "what
else did you try to find out about this case? Did you try to substantiate it in any
way?" And if I don't come up with the right answers, and I have in fact dragged
your name through the mud when it doesn't deserve to be, then I should lose my
job because I am a terrible reporter.

And, as Gabe pointed out, reporters vary in ability also.

Assemblyman Gottfried. I wonder if you could just, to confirm for the record,
sort of reiterate

Mr. Greenberg. What you have talked about this morning has focused on the
confidential sources drying up, but one of the other big rationale for the kind of
legislation that is being considered, is the disruption of the news room process
or the news room process generally that would come about as a result of this
kind of police search, could give a kind of scenario, what sort of disruption
would ensue from this type of police conduct? Is there a time of day. for
<'xainple. that is worse than another time of day in terms of tlie kind of intrusion?

Mr. Ryan. Obviously, all news organizations operate on deadlines. At Chan-
nel 5. the news program goes on at 10:00 and we go on at 5:00 in the evening.