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A Special Report: Is the Free Press in Danger?

An investigation into the risks reporters run in doing their job

Freedom of the Press, Engraving

An engraving popular at the time. Law on the freedom of the press, July 29th, 1881

Culture Club/Getty

At 1:32 on the morning of March 1, 1971, a bomb exploded on the Senate side of the US Capitol. It ripped out the walls of seven rooms on the ground floor, blew doors off their hinges down the hall, upset tables in the Senate dining room. The explosion raised the Capitol off its foundations for a moment, causing some structural damage. Like a series of anti-Vietnam bombings which had preceded it, it was never solved.

One afternoon in New York recently a man calling himself John the Archivist walked into the office of an attorney carrying a thick envelope stuffed with papers and cassette tapes. He was, he said, one of the people who had bombed the Capitol.

John’s story was that he had been in the group from the beginning for the purpose of keeping a detailed record of their work. He maintained a diary, interviewed each member of the group, tape recorded their meetings. It was intended that he should write a book about the plot, but when he tried to do so a year afterwards, he had no success. Now the bombers, scattered around the country but still in contact with one another, had authorized him to find a writer for the project. To prove there was no hoax, he would leave the material for inspection and once a writer was secured the group had agreed to meet secretly with him for whatever interviews he required.

The attorney took the material and, some days later, turned it over to a journalist who agreed to consider the project. He read the papers and listened to the tapes— – interviews, soliloquies on the reasons for violent anti-war action, a tape allegedly made the night before the bomb was planted with the group cracking jokes, smoking dope, giggling with excitement.

The writer said he wanted to do the book. A publisher agreed and a contract was drawn up. Then the writer consulted his lawyer, who told him the penalty for doing it would be jail. Unless he was prepared to betray everyone he talked to in connection with the book, he would go to jail. No American today, said the lawyer, could write such a book, keep his promises to the people involved, and stay free.

I sat down with the writer in the living room of his home and he explained why.

“My lawyer said, ‘I can tell you right now that you will be called before a grand jury and be held in contempt if you refuse to answer their questions.’

“He made it clear that I had exactly two choices. The first was I could refuse to appear and go to jail for the life of the grand jury. He might keep me out for a while with appeals, but I was going to lose in the end. The other alternative was to appear before the grand jury, but have reached an agreement with the bombers in advance about what I could safely tell the grand jury.

“The problem with this second plan was that these were, judging from the tapes, disorganized kids who really didn’t know how much they could reveal and still be safe from the FBI. They had already told too much in the tapes; I knew plenty.

“If I let them talk freely in our interviews and then tried to protect them before the grand jury – —by keeping out incriminating details— – I’d be running a very serious risk of being indicted for perjury.

“My first question when I got the material was, ‘Is this authentic? Is this the genuine stuff?’ But as I thought about it I realized that the more I tried to authenticate the story as I worked on the book, the more things I would learn which I would then have to either tell a grand jury or refuse to tell them and go to jail. If I wanted to stay out of jail I couldn’t confirm details of the story. I couldn’t do research. I couldn’t allow myself to know who was involved, what they did, where they went. I would have a vested interest in ignorance.

“The government was absolutely successful here. They put an impenetrable wall between those people and the public— – which was their main intention. Whatever these people have done, they have not yet been tried in a court of law, yet they have become absolute outcasts. They cannot safely be written about. They’re like lepers carrying their bells, warning people wherever they go to disperse.

“It probably would have been a very useful book,” he said. “Now it’s just another piece of unwritten history.”

Something like a leper’s curse now cloaks the writer, even though he did not write the book. This story can contain no mention of his name or clue to his identity, because if it did he could still be summoned before a grand jury, asked to tell everything he learned from John the Archivist’s package, and thrown in jail if he wouldn’t talk.

The curse extends further. Once this is in print I can be subpoenaed and asked the writer’s name so the grand jury can question him. If I refuse I can be sent to jail indefinitely. My offense would be that I told you this story, and refused to tell a secret jury more.

* * *

Earl Caldwell first ran into the FBI in 1966 when he was 27 years old and (then as now) one of the New York Times’ few black reporters. He had covered a Jerry Rubin press conference and was back in the Times city room, a huge room the width of a city block, sitting at his desk preparing to write the story.

“The next thing I know this FBI agent is sitting in the chair right next to me,” Caldwell recalled. “He’s right there in the city room of the New York Times, and he wants to know if he can see my notes.

“Now I haven’t been on the paper that long, and I don’t know how they do business here at the Times. So I say, ‘Well, shit, here are my notes.’ I handed them to him. I say, ‘It was an open press conference, you know. If you ask one of those radio guys they’ll play back their tape of it if you want.’ “

The agent scrutinized the notes, like most reporter’s notes, almost indecipherable to anybody but the reporter himself. He thanked Caldwell and left.

At about this time, in Phoenix, Arizona, William Rehnquist was crawling out of a hole dug by Barry Goldwater. A smooth-faced, grinning lawyer in heavy black plastic glasses, Rehnquist was a Goldwater Republican; the hole had opened up two years earlier when Barry was landslided by Lyndon Johnson, leaving the Republican party in disarray and his faction of it in deep disfavor.

Despite this setback Rehnquist had managed to put a modest gloss on his name. He got mentioned in the papers by giving a speech urging that government employees who opposed the Vietnam War be fired. He achieved notoriety as a consistent enemy of civil rights legislation: “We are no more dedicated to an ‘integrated’ society than to a ‘segregated’ one,” he said.

After ten years Rehnquist had managed to put down roots in a community where he originally knew nobody. He had graduated at the top of his class at Stanford Law School and clerked in the Supreme Court when he met a girl in Washington who agreed to quit her job at the CIA to marry him. They went to Arizona because it was Goldwater’s home. They decided on Phoenix by flipping a coin.

“Basically a humorless man, somewhat prissy in his attitudes,” was how one Phoenix judge described him. But Rehnquist was less concerned with what judges thought than with how he might rise in the Republican party. In the trailing penumbra of Goldwater’s defeat nobody knew who might be the 1968 nominee, or whether any Republican could beat Johnson. Rehnquist sometimes discussed these questions with a friend and fellow Phoenix lawyer, Richard Kleindienst.

Caldwell spent the summer of 1967 flying around the country as part of a Times team covering riots. He came to know a number of “black militants,” as they were being called, including H. Rap Brown, who asked Caldwell to write his biography, and some of the men who put together the Black Panther Party.

So in 1968 Caldwell found himself in San Francisco writing stories about the Panthers. A small man with a lilting voice and a quick laugh, he began spending days and nights inside sandbagged Panther offices, taping interviews which often turned into rambling conversations among the Panthers about revolution and arms. Some of these talks were so revealing that Caldwell was afraid to replace the tape when it ran out because he thought the Panthers, reminded of the recording device, would confiscate it.

“One night it came to pass that I was in an apartment with a number of guys from the party and they exposed a lot of guns,” Caldwell recalled years later, over dinner in San Diego. “A lot of guns. I was taken aback. I had never seen guns like that. All these guys back in Harlem had always been running their mouths, talking that shit, but no one had ever put it out.

“Well, these guys grabbed a couch and pulled it, it had a phony back on it, and in the back were stacks of weapons. All kinds of weapons. They just shocked the shit out of me.”

Caldwell filed a story about the cache of guns and flew back to New York. He had been at his desk only minutes when two FBI men announced themselves at the reception desk. Caldwell went out. The agents demanded to know more about the Panther weapons.

“Everything I know is in the paper,” Caldwell said. “I’ve got nothing else to say.”

He turned to go back into the city room. One of the agents blocked his way. “We’ve got to check this out,” he told Caldwell. “You understand. If it were the Minutemen we’d do the same thing.”

Caldwell tried to go in another direction; the other agent blocked him. The two agents loomed over Caldwell like columns at the Parthenon. The three began to shuttle around the reception room in a strange dance, Caldwell orbited by the big white agents. “You’ve got to cooperate,” the agents kept saying.

Finally another black reporter appeared, broke the circle, and led Caldwell back into the city room.

If things were getting tighter for Caldwell, they were opening up a bit for Bill Rehnquist. George Romney, previously favored to win the GOP nomination, had stubbed his toe with a remark about “brainwashing” in Vietnam, and so had boosted the chances of Richard Nixon. This was important to Rehnquist because Nixon had just named as field commander, the man in charge of rounding up Nixon delegates for the convention, none other than Rehnquist’s friend, Bill Kleindienst.

Back in San Francisco, Caldwell found he had become the object of intense curiosity by the FBI. “They knew everything I had. They knew all this confidential information. Certain guys I’d interview not for the Times, but keeping the information for myself, thinking maybe I’d later write these fabulous magazine pieces, which I never got around to doing. . . . And the FBI would call and say, ‘Yeah, you cut a tape on so-and-so,’ and they were talking about my confidential shit! The stuff I was keeping even from the Times!

“One day a Times lawyer called from New York and said, ‘Earl, we believe the phones are tapped and we don’t want you to discuss anything sensitive on the telephone. If you’ve got something important to talk about, go outside and phone.’ I thought, this is really something. Here’s the most powerful paper, they say, in the Western world, they think the government’s got them under survey, eavesdropping on them and their reporters, and their solution to the problem is to tell me not to talk on the phones.”

The year that followed was all uphill from Phoenix. Nixon won the nomination and the election, and his campaign manager, John Mitchell, became attorney general. Appointed deputy attorney general was Kleindienst, for his good work in rounding up delegates. And named as assistant attorney general, in charge of the Justice Department’s Office of Legal Council, was Bill Rehnquist.

Next summer Black Panthers across the nation suddenly came under police assault. The police denied any secret coordination between departments, but for some reason within a few weeks Panther headquarters in a half dozen cities were besieged by armed cops, some of whom came in shooting. In Chicago, Fred Hampton was killed in his bed.

In San Francisco, Caldwell, still covering the Panthers, was getting phone calls almost daily from the FBI. “They would call and I wouldn’t talk to them. So they started getting women to call. A woman would come on the phone and ask for me, then when I answered an agent would come on behind the woman. So we had a woman at the Times bureau, and when their woman would call, our woman would get on the phone, and the two women would go back and forth.

“Finally one day the agents called and said, ‘Listen, you just tell Caldwell we’re tired of playing with him. If he doesn’t want to tell it to us, he’ll tell it to the court.’ That was like a Friday, and Monday the subpoena came.”

The first that Attorney General Mitchell knew of the Caldwell subpoena, it appears, was when he opened the New York Times on February 3, 1970, and read about it. “There was a lot of thrashing around trying to find out exactly what happened,” said one of his associates.

After some investigation it began to look like the FBI had indeed persuaded a US attorney to subpoena Caldwell. This put Mitchell in a fight with the Times which he didn’t especially want, at least not unless he could pick his own time and place. Mitchell put out the word to his attorneys not to subpoena newsmen unless they had no alternative, and not even then until the news organization involved had been given a chance to negotiate.

Despite this warning, CBS News soon was subpoenaed without Mitchell being informed and without much effort to negotiate. Now Mitchell had both the Times and CBS on his back, thanks mostly to the FBI, which he was supposed to control.

To prevent more of these headaches, Mitchell ordered creation of strict guidelines to define when newsmen could be subpoenaed. Several top people in the Justice Department worked out the guidelines; whether Bill Rehnquist was one of them is one of the interesting lesser questions of history.

One official who took part in the project recalls that there was “input” from the office Rehnquist headed, and it is known that Rehnquist’s staff wrote him a memo on the subject. The memo said that allowing reporters to keep their sources confidential from grand juries would permit “undue extension of freedom of the press to accomplish the aims of an economic group.” (The “economic group” referred to was the news media.)

The guidelines, out in August, said US attorneys were to subpoena newsmen only if the information to be gotten was likely to lead to successful prosecution and if they couldn’t get it anywhere else. To make sure he was completely in control, Mitchell added that if any subpoenas were issued in violation of the guidelines, the Justice Department itself would move to quash them.

With the new rules out reporters had less trouble with federal subpoenas. But this was academic to Caldwell. He had refused to enter the grand jury chamber, arguing that since testimony there is secret his credibility would be damaged just by going inside, even if he answered no questions. The Panthers would never know whether Caldwell had secretly betrayed them. A court of appeals ruled in Caldwell’s favor. The government appealed, and the case moved toward the Supreme Court.

In late 1971 there were two vacant seats on the Court, and Nixon, planning how to fill them, did not want to get burned again. The last time a seat had been empty he had nominated in succession two men so glaringly unqualified that the Senate, to his astonishment, rejected them both. This time after some clever footwork (submitting a list of potential candidates to the American Bar Association for their approval, then nominating two men not even on the list), Nixon named a respected, rich, conservative judge named Lewis Powell, and a 47-year-old Justice Department lawyer named Bill Rehnquist.

The Bar Association approved both men, Rehnquist with less enthusiasm than Powell. They noted that Rehnquist had never sat on a bench and added dryly that he “could not be said to be the leading lawyer in Phoenix.” After a few shaky moments in the Senate Judiciary Committee – —Rehnquist was alleged to have belonged to Arizonans for America, a precursor of the John Birch Society – —he was confirmed by the Senate on December 11, 1971. He took his seat on the Supreme Court January 7th.

One of the first cases to come before the court— – combined with two similar newsman’s source cases— – was Caldwell’s. Observers expected Rehnquist to disqualify himself because of his prior association, or at least close proximity, with the Caldwell matter in the Justice Department. He did not. Rehnquist’s vote made the difference, and on June 29th the court ruled five to four against Caldwell, opening one of the great breaches in the First Amendment in modern times.

“There is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation,” said the majority opinion written by Byron White and backed by three of the four Nixon appointees to the court. The fourth Nixon man, Powell, wrote a concurring opinion to say that if an investigation were not conducted in “good faith,” if the newsman’s testimony would not serve a legitimate interest of law enforcement, or if it was only tenuously related to the matter being investigated, a reporter could refuse to testify. These reservations by Powell afford the only dry ground for newsmen who still hope to assert First Amendment rights against subpoena.

Since the Caldwell decision three reporters have gone to jail for refusing to reveal confidential information or its source. At least 20 others have been or are being threatened by the law. Some refused to tell something a judge or grand jury wanted to know. Others (in cases not legally related to Caldwell but equally indicative of how judges currently feel about the press) printed something a judge didn’t want the public to know.

Caldwell destroyed his Panther notes and tapes before he was served the original subpoena, and by the time of the Supreme Court decision the grand jury involved had dissolved, so the impact of the decision on him lay chiefly in its irony.

“When I first came out West to cover the Panthers, they used to grab me and accuse me of being a cop,” he said. “I remember Donald Cox— – field marshal, he’s in Algiers now – —he used to say, ‘Listen, I know you’re a cop, but we don’t care. We just want you to level with us.’ I would say, ‘I’m a reporter!’ But they never could believe that. I had to go through hell to convince those guys that I was who I was and that’s all I was. . . .

“Then it turned out that I hadn’t even known about me. I was a spy. The government really did have a right to everything I had. I was a spy.”

* * *

In Arkansas a judge found Harry Wood, editor of the Texarkana Gazette, in contempt for printing the verdict in a rape case. The verdict was on public record, but the judge had three more people to try in the same case and feared it would make it harder to select another jury if the word got out. The judge wanted, in effect, to sequester the earth. Wood had to appeal all the way to the state supreme court before he got the contempt citation dismissed.

* * *

While Caldwell was covering the Panthers in California, Paul Branzburg was writing dope stories for the Louisville Courier-Journal. Long-haired, friendly and energetic, a graduate of Harvard Law School and the Columbia graduate school of journalism, Branzburg put in long hours getting to know local dope dealers and heads, gaining their confidence. He was successful enough that at one point some people running a hashish processing plant in Louisville let Branzburg come in with a photographer and watch the operation for two days. His story ran with photos, faces obscured.

A few days later Branzburg stood in front of 12 men and women, average age perhaps 50, in a small, stuffy room in the Louisville courthouse. Before this grand jury, a prosecutor asked for details about the hash factory.

Branzburg said he would not answer, and took from his pocket a copy of the Kentucky newsman’s privilege law, which is supposed to protect reporters in such situations. The prosecutor argued that the law applied only to conversations with sources, not to cases when a reporter witnessed a crime firsthand. The grand jury and a judge agreed, and before the day was over Branzburg had been found guilty of contempt for refusing the judge’s order to answer the prosecutor’s questions. He went free pending appeal.

Outside on the courthouse steps Branzburg recognized four narcotics agents, one each from the federal, state, county and local jurisdictions. They told Branzburg they had been waiting to see if he would name the hash dealers so they could jump into their cars and go make the arrests.

While that case was still being appealed Branzburg again found himself before a grand jury, this time in Frankfort, the state capital. The governor had been in the midst of a statewide antidrug campaign when Branzburg embarrassed him by reporting that doctors, lawyers and government officials right in the capital were smoking and dealing grass. One Branzburg story told of a middle-level state official selling dope in the capitol building itself while the governor was off puffing an anti-dope convention.

These stories aroused in prosecutors a fresh curiosity about dope. Who were these criminals? Branzburg was to tell or go to jail.

This time Branzburg refused to enter the grand jury chamber.

“The reason is that I had interviewed at least 30 people. Some of them I had met for only a few hours, knew only casually. In that situation, if I went into a grand jury room where the proceedings are secret and one of these people later got busted, the word would be that I was the one who finked. It would chill my relationship with my sources.

“I had a reputation for keeping my mouth shut, but if I’d gone in there and someone had subsequently gotten busted – —and someone was sure to, some were high-school kids who were very careless – —they would suspect I had named them. It was a real fear for me.”

As he stood outside the courtroom door telling other reporters why he would not testify, Branzburg could see some of the people who had given him information standing in the crowd. “They were just watching to see what would happen.” Branzburg walked out.

In the same decision as Caldwell’s, the Supreme Court ruled against Branzburg and he became a fugitive from Kentucky. Now working for the Detroit Free Press, he has been sentenced to at least six months in the Louisville jail, a sentence which could stretch out indefinitely if he stayed silent. The governor of Kentucky is carrying on extradition proceedings to get him back.

An interesting thing about this case is that Branzburg would not be in trouble if he had done a poorer job of reporting. If he had settled for word-of-mouth about the hash factory, for example, he would have been protected by the law. He is a fugitive because he insisted on seeing things with his own eyes before reporting on them, because he acted like a journalist instead of a hack rewrite man.

“If I’d done dope reporting by talking to cops and reading academic studies, there would have been no problem,” Branzburg said from his desk in the city room of the Free Press. “But you know, nine-tenths of the stuff you get that way is hogwash.”

* * *

Party night at the Los Angeles Press Club. Between the stale banana-colored walls, beneath the dead acoustic tile ceilings stained and warped by years of seeping rain, below the sad clocks set to the time in “London,” “Tokyo” and “New York,” are gathered the aging club set of L.A. reporters, in suits of dark blue, black and charcoal grey, like a congress of clams. Seated across from me is Bill Farr, a “moderately conservative” Republican among Democrats, in hip GOP red slacks, deep red shirt, matching red patterned tie.

“Hello, Bill,” someone shouts, “good to see you out.”

Farr nods and smiles slightly and folds one hand into the other below his chin. His face is very pale. He has emerged from a windowless cell in Los Angeles County Jail, in which he spent 46 days and to which he may have to return.

Farr’s life of crime began when he wrote a story during the Charles Manson —trial saying that Manson’s clan had planned further murders beyond the Tate raid. The judge, who had banned such publicity, demanded to know who told Farr that. Farr had said he learned of the plot from attorneys in the case; he refused to tell which ones.

“The story itself wasn’t that big a deal,” Farr says. His speech is hesitant, almost plodding. “It wasn’t about corruption in high places, or organized crime, or injustice to an individual. It was a good news story but it had no great import. I get criticized by publications like the New Republic who say it was a seamy and sensationalistic story. Apparently they feel that because there was no nobility involved I ought to break my promise to my sources. I feel that it’s unfair for somebody to put me down like that.”

If Farr’s appeals fail, he can be jailed until he agrees to name his sources, however long that might be.

“I would be better off, Tim, if I had leaped over the counter and tried to choke the judge. I would be able to get a pardon. Under civil contempt you have no right to a pardon. And I would have the right to a jury trial, which under civil contempt I don’t.  . . .

“I shudder at the thought of going back, because the judge has indicated he’s talking not about days or months, but about years. Frankly, that terrifies me. . . .

“I’ve tended toward being a moderately conservative Republican, but in my plight the only help I’ve gotten has come from very liberal sources. I find that almost humorous, except that ultimately my case is going to the Supreme Court, and I’m not optimistic about my chances there.”

It is time for dinner and the reporters have gathered their wives— – whose hair, like their husbands’ suits, comes mostly in two or three primary shades of blue and grey— – and they are edging past the bar, with its celebrity photographs of cowboys and bathing beauties, into the dining room.

Farr’s voice drops shyly. “I’m 38 years old. I’d like to get married again [he is divorced, has one son]. I haven’t gotten to that point with any individual girl, because with this hanging over my head, I can’t. I could be in jail a long time. I can’t let myself get to that emotional point with anybody. Out of fairness, I mean.”

* * *

Although these are dangerous times for newsmen, President Nixon has often emphasized that he, personally, has nothing against the press. He gave a White House party for a magazine— – Reader’s Digest, on the occasion of its 50th anniversary. Norman Vincent Peale, Billy Graham, Bob Hope, Fred McMurray and Frank Borman, the astronaut, were there. In praising DeWitt Wallace, the founder of Reader’s Digest, the President said, “he has made a towering contribution to that freedom of the mind from which spring all our other liberties.”

Nixon’s daughter Tricia, asked about her career plans, said: “I would really love to write, for a newspaper or something like that. I’d really love to be a reporter.”

* * *

In his years as a Washington reporter, Jack Nelson of the Los Angeles Times has grown accustomed to a certain amount of official elbowing.

For example, there was the case of J. Edgar Hoover. Angry over Nelson stories critical of the FBI, Hoover began trying to get Nelson fired. He sent to the management of the Times copies of a dossier alleging that Nelson was an unreliable drunkard. When this produced no results, Hoover met with L.A. Times executives in Washington and startled them by pulling out a file on Nelson and reading FBI reports that Nelson habitually got drunk, on which occasions he went around calling Hoover a homosexual.

“If he calls me a homosexual one more time I’ll sue him,” Hoover growled. The interview reportedly broke up when Hoover began rambling, making remarks in which he confused Nelson with Jack Anderson.

Nelson had trouble with Attorney General Richard Kleindienst when he discovered that a “Great American” award given to Kleindienst – —an award the attorney general was so proud of he issued a press release announcing it – —was the invention of a one-man comic book house. Previous Great Americans, it appeared, had not been real people like Kleindienst but funny paper heroes.

Nelson called Kleindienst to get a comment for the story. “Goddamn it, Nelson, son of a bitch!” Kleindienst shouted. “I’ve always wanted to be a Great American and now you’re going to fuck it up! You suck one cock and they call you a cocksucker!”

So when Nelson and his colleague Ron Ostrow obtained an interview with Alfred Baldwin, chief prosecution witness in the Watergate case, they guessed they might run into some elbowing when the story came out. No party to the case was very friendly: The defense stood to be hurt by Baldwin’s testimony, and the prosecution, as a wing of Nixon’s Justice Department, was less than vigorous about digging to the bottom of an espionage operation financed by Nixon’s campaign committee. After typing the interview all night, Nelson and Ostrow sent the tapes to Los Angeles.

“We never ordinarily would have hurried the story up like that, or sent those tapes out of town,” Nelson said. “It was just the goddamn atmosphere the administration has created that made it necessary.”

Sure enough the tapes were quickly subpoenaed – —by the defense, on grounds that unpublished material in them might serve to discredit Baldwin’s prosecution testimony. Judge John Sirica ordered John Lawrence, chief of the Times Washington Bureau and the ranking Times man in Sirica’s jurisdiction, to get the tapes and hand them over. Lawrence refused, was found in contempt, and went to jail for a couple of hours before being released on appeal.

Lawrence, 38 years old, with a wife and three children, was in a strange position. He had not even become bureau chief until after the interview was published and he had never seen the tapes. Yet if they were not produced, he was the one who would go to jail.

After two days the Times gave in and delivered the tapes, with Baldwin’s permission. (A former FBI agent, Baldwin had destroyed his own copy.)

The Reporter’s Committee for Freedom of the Press called the action “a further serious erosion” of the First Amendment. The editor of the Times, William Thomas, suggested that the paper gave in because forcing the issue might have damaged the First Amendment more.

“If we had lost our appeals— – and today’s Supreme Court has already made clear its contempt for the rights of the press – —we and all the media would have become a grab bag for every attorney in every conceivable kind of case,” Thomas wrote. Besides, he pointed out, the Times already had spent over $100,000 fighting subpoenas.

* * *

A new government tactic is to treat newsmen who get hold of private government documents as simple thieves. A reporter who obtains an embarrassing paper is held to be really no better than a burglar who climbs in the window and steals the water cooler.

Daniel Ellsberg and Tony Russo, the sources of the greatest documentation of government lying in recent times, the Pentagon Papers, are being charged not only with espionage and conspiracy but with theft. The Pentagon Papers belonged to the government, not the people, goes this argument, and Ellsberg and Russo “stole” them when they made copies.

The same logic obtained in the arrest of Les Whitten, who works for Jack Anderson. Whitten went along with an Indian friend to watch the return to the FBI of some of the documents seized during the occupation of the Bureau of Indian Affairs in Washington. As Whitten was helping load the cartons of papers into a car a dozen FBI agents swooped down. The name of an FBI agent to whom the papers were to be returned was written on top of the cartons; the agents had just managed to make the arrest before the stuff would have been given to them.

Whitten was accused of “theft” of the documents, a charge even he found funny. “What good would documents do me?” he asked. “Am I going to take documents and wallpaper my house with them? Am I going to sell them for profit as scrap? I’m not interested in those documents; I’m interested in what they say.”

A grand jury failed to indict Whitten and he went free, but the government has shown no signs of abandoning its attempt to get at irritating newsmen by charging them with theft of the news. If it can be made to stick, such a charge would expose nearly every investigative reporter to prosecution. “I don’t think there’s a reporter worth a nickel in the whole country who hasn’t been shown secret documents, touched them or been given them,” said Abe Rosenthal, managing editor of the New York Times.

* * *

Only a few months after his friend Bill Rehnquist ascended to the Supreme Court, Richard Kleindienst got into a struggle of his own with a reporter—in this case, Brit Hume of Jack Anderson’s office. John Mitchell was quitting as attorney general to run Nixon’s campaign, Nixon had named Kleindienst to replace him, and approval by the Senate seemed as easy as banging down a rubber stamp. Then, on the day before the Senate Judiciary Committee voted on Kleindienst, Anderson’s column printed the Dita Beard memo.

Dita Beard was a lobbyist for the International Telephone and Telegraph Company. The memo indicated that ITT had made a deal with the Nixon people to give them a big campaign contribution in return for an amiable settlement of three major antitrust suits against ITT.

The Senate committee went ahead and confirmed Kleindienst unanimously, but in the next few days the smell stirred up by Hume’s investigations (and those of other reporters who picked up the story) spread terrifically. To be specific:

The memo was dated June 25, 1971. Allegedly written by Beard to an ITT vice president, it said that since ITT had pledged the contribution to Nixon’s campaign, the Justice Department (headed by Mitchell) was inclined to settle the antitrust matter. “Mitchell is definitely helping us but cannot let it be known,” the memo said in part. Less than a month later, on July 23rd, the Republicans announced San Diego would be the site of their 1972 convention. A major portion of the $400,000 the city of San Diego had put up to win the convention turned out to have been contributed by the Sheraton Corporation; Sheraton is a subsidiary of ITT. Eight days later, on July 31st, the Justice Department announced it had settled the ITT antitrust cases out of court.

ITT employees reported that the day after Anderson’s column broke the story, huge sacks of files were fed into office paper shredders.

Kleindienst and Hume entered into battle over the story. Kleindienst claimed he took no part in the ITT antitrust settlement. Hume found an ITT director who said he and Kleindienst negotiated the settlement “continuously.” Kleindienst admitted this was true—admitted, in effect, that he had been lying—but said there was no connection between the settlement and the campaign gift. —

Indeed, said Kleindienst, he hadn’t heard about the contribution until months after the antitrust matter had been disposed of. There then were found two letters written by Kleindienst before that time, mentioning the contribution; it looked like Kleindienst, nominated as the nation’s chief law enforcement officer, might be lying again.

Faced with a possible Senate fight over his confirmation, Kleindienst had asked that the Judiciary Committee reopen his case. He testified that he had talked with no one at the White House about the ITT situation; a White House aide then swore that he twice discussed the case with Kleindienst on the phone.

Marvelous details surfaced. A doctor tending to Dita Beard said she was at times “distorted and irrational,” and was suffering from a “mental block” which prevented her remembering whether she had written the memo. This doctor, it came to light, had been accused of massive overcharging of Medicare patients only a month before, but had not been brought to trial. Who had cleared him? The Justice Department.

The outcome was that the Republicans moved their convention to Miami Beach. . . . and the Senate Judiciary Committee confirmed Kleindienst again, this time by a vote of 11 to four. Today Kleindienst is attorney general, and Brit Hume is something of a bitter man.

Hume’s office in the Washington headquarters of Ramparts magazine was quiet. Though the weather was warm the windows were closed and locked. On the wall hung a giant blow-up of a paragraph from a Spiro Agnew speech, calling Hume a “pathetic muckraker.” The Pathetic Muckraker himself sat behind his desk, his tie pulled loose, dark circles below his eyes, unsmiling. He spoke in a dry, tight fashion that made him sound a bit like Jimmy Stewart.

“You know, a lot of people came to me during the ITT thing and said, ‘Gee, this is really great publicity.’ Well, it may have been, but it wouldn’t have been if I’d come out of it looking like Clifford Irving. There was always that risk. We were terribly outmanned: It was Jack Anderson and myself basically, with the somewhat half-baked assistance of a few aides on one side of the hill, up against the Justice Department, the ITT with whatever resources they could muster— – which were enormous— – and a majority of the Senate Judiciary Committee. My struggle was never so much to defeat Kleindienst as it was to preserve my own credibility and the integrity of the story.

“A lot of people thought it was fun. Well, it was never fun. It was damned nerve-racking and I was tense as hell. We got through it with some luck. They had every kind of ruse to try to trip us up. And when all that was over, Kleindienst was confirmed by an over whelming vote and the thing passed into nothingness. Everything went back to the way it was. . . . When you watch the system in its inexorable way grind toward vindication of the guilty, it’s very discouraging.”

Outside the sealed windows, across the street, a crane silently lifted a bundle of steel girders to the top of the skeleton of a small office building. Hume paused for a moment, staring straight ahead.

“You begin to think, well, what the hell difference does it make, anyway? Why the hell should reporters go out, stick their necks out, ride out some scandal in which they’re being accused of perjury and all. . . .

“You tend to get bitter and cynical. It drains you of some of the vitality and energy that you have to have. This is a business in which you confront the sordid and seamy side of everything anyway. You get kind of a dour outlook, negative and pessimistic. It weakens your resolve, that’s all. It weakens your determination. You begin to feel that it’s all just a hopeless idea.”

Hume’s life has been complicated by a $9 million lawsuit filed against him, Anderson and the Washington Post in connection with a story he wrote about a reported burglary at the headquarters of the United Mine Workers, a union for years riddled with corruption. A federal judge ordered Hume to disclose his source for the story, on grounds that libel laws would be almost worthless if newsmen could hide from them by quoting secret sources. Hume considers the secret serious business: A multiple murder marked the recent history of the UMW, with one union official pleading guilty to it and another awaiting trial. Hume says he has “pretty much decided” if his appeal fails he will go to jail rather than give away his source.

“I don’t know if it’s possible for anybody not in a situation like this to calculate the impact of it. There’s the possibility of loss of a lot of money, a huge judgment being entered against you because you won’t disclose information the court says the other side is entitled to. And you have the possibility of severe official action against you, and indictment for some kangaroo offense designed to stop leaks of information. Or a damage award. Or a jail term. If you carry something like that around for a couple of years, it has a very, very demoralizing effect.

“Investigative reporting is not a highly lucrative business. The work itself is not so terribly enjoyable. It is extremely difficult and tedious and it is rewarding only in the sense that you feel that you’re doing something significant and worthwhile. It’s a strain.

“You add all these things up and you begin to wonder if it’s really worth it any more to be on the firing line, to accept these risks, in the name of a constitutional principle and the idea of an informed public. You ask yourself, ‘What the hell is in it for me?'”

* * *

Two years ago CBS did a documentary called The Selling of the Pentagon, about the public relations efforts of the military, which proportedly cost more each year than the budgets of any of the network news departments. The show contained no flaming revelations— – “tame journalism” was how one TV critic described it – —but it was enough to get the administration going.

Without refuting any charge made in the show, Agnew called it “a subtle but vicious broadside against the nation’s defense establishment.” There were generalized accusations of lying and distortion, demands that the government be given all the raw film plus the names and addresses of everyone interviewed for the show, and so on.

An expensive new round of The Game was under way. Nixon’s people filed lists of detailed questions, which CBS answered in detail, only to get more questions. The administration, using public money, was able to keep this up as long as they wanted. CBS ultimately spent about $100,000 defending itself, an amount equal to the original cost of producing the show.

Network news people tend to talk a lot about their relationship with the administration in terms of The Game. One put it this way:

“Networks are big corporations and they talk to government like other big corporations. There’s an unspoken agreement about how far we can go. It’s all right for us to take our shots on the regular program and let loose from time to time with a documentary. But not too often. If a network starts to put the heat on and stops playing the game, there will be trouble.”

The administration felt the rules had been violated last fall when CBS produced a two-part special report on the Watergate. It appeared as part of Walter Cronkite’s show, with Cronkite narrating. The first installment, 14 minutes long, ran on a Friday. Before the Monday segment appeared, Charles Colson, Nixon’s attorney and friend, called a top CBS executive – —reportedly board chairman William Paley – —and complained. The report was coming too close to the election, Colson said, and looked like an effort to embarrass the President. Colson reportedly did not argue that anything in the show had been false. His case was simply that CBS was not being fair, not playing The Game.

Paley did not tell Colson that news is the network’s business and hang up. Instead an order came down that the second installment of the Watergate report was to be cut in half. In a CBS screening room Monday afternoon the people who helped put together the show cut it down from 15 to a little over seven minutes. Deleted was an illustrated account of how money from the Committee to Re-elect the President allegedly was “laundered” by passing it through the hands of intermediaries before being paid to agents for spying on and attempting to sabotage the Democratic campaign.

Nobody in the editing room seemed surprised or indignant to be editing on White House orders. It was all part of The Game.

* * *

Last June 22nd President Nixon met privately in the cabinet room of the White House with 30 of the country’s top independent broadcasters. Most of the major American television and radio stations— – except for stations owned and operated by the networks— – are controlled by these 30 men.

With the election coming up it was time for what they call a frank exchange of views. Sitting around the big oval cabinet table with Nixon in the center chair, the broadcasters complained mostly about license renewal expenses and “strikes.” These were both genuine worries. License renewal every three years costs an average station up to $100,000 in legal fees. If the license is challenged the cost goes up much higher. “Strikes” are cases of blackmail where bogus community groups file challenges and then extort money from the station to call them off. Broadcasters could save plenty of money if licenses lasted longer and it were harder to challenge them.

The President looked upon the group with understanding in his eyes. He had not known of this problem, he said. He was sure something could be done.

“We want to make life easier for you,” he said. “You should make life a little easier for us.”

Nixon said he knew it was not the fault of the independent broadcasters at this table (all but a half-dozen of whom were Republicans) that television news had been so tough on his administration, so critical, unbalanced and unfair. It was the fault of the networks. Their commentators were often dead —wrong and wouldn’t even admit it later. When Nixon announced the mining of Haiphong harbor, hadn’t all the TV commentators predicted the Moscow trip would be called off? And when it wasn’t, had a single one of them admitted his error? So there you are.

The networks keep hiring young reporters errantly trained in journalism schools to be advocates instead of journalists, said Nixon. “They don’t see it as their duty to report the news fairly. They see it as their duty to report the news as they see it, through eyes which are biased.”

Nixon implored the broadcasters to see what they could do, “individually and collectively,” to get the networks to correct those biased eyes. Failing that, they could at least see that their local news shows balanced off the networks. When the networks put on a David Brinkley or an Eric Severeid, why not put on somebody to give the other side?

Meanwhile, the President said— – in case anyone still missed the point— – he would have his people look into the license renewal problem. Sitting unobtrusively in the corner was the man who would get that assignment: An expressionless 34-year-old bureaucrat named Clay Whitehead.

* * *

MIT, the Rand Corporation and the US Army were the institutions that trained Whitehead to become an expert in broadcasting. At MIT he started out studying physics, switched to electrical engineering, then to economics and business. He wrote his Ph.D. thesis on policy-making processes in large corporations, went to work for Rand, then served in the Army, where he applied his expertise to the field of chemical and biological warfare. Back at Rand later, he was approached by Democrats and asked to work on Hubert Humphrey’s campaign. Whitehead seems never to have thought about politics before this time, but he pondered the offer and determined he would rather work for Nixon.

At the time of his appointment as director of the White House Office of Telecommunications Policy, Whitehead admitted his TV viewing had been limited primarily to Saturday morning children’s shows. Since then he has tried to catch at least one network news show each week, but missed The Selling of the Pentagon, the CBS Watergate report, NBC’s coverage of the Christmas bombing of Hanoi, and apparently every other notable TV news show in recent history.

On December 18th he gave his famous speech to a Sigma Delta Chi luncheon in Indianapolis:

“When there are only a few sources of national news on television, as we now have, editorial responsibility must be exercised more effectively by local broadcasters and by network management. Station managers and network officials who fail to act to correct imbalance or consistent bias in the networks— – or who acquiesce by silence – —can only be considered willing participants, to be held fully accountable . . . at license renewal time. Who else but management can or should correct so-called professionals who confuse sensationalism with sense and who dispense elitist gossip in the guise of news analysis?

” . . . . When a reporter or disk jockey slips in or passes over information in order to line his pocket, that’s plugola. And management would take quick corrective action. But men also stress or supress information in accordance with their beliefs. Will station licensees or network executives also take action against this ideological plugola?”

The bill Whitehead proposed said nothing about any of this; it would simply extend licenses from three to five years and make it more difficult for anyone to challenge them. But any broadcaster who hadn’t fallen asleep in the cabinet room June 22nd understood the deal.

I went to see Whitehead at the Warwick Hotel in New York, where he was staying in a tiny room with burnt vanilla walls and windows looking out on another wall. As we talked I learned astonishing things I had never known before: Nixon wants less government control of broadcasting, not more; he wants people to know more about the administration, not less; his quest is to develop “an alive, alert, questioning citizenry.” It was an education for me.

I started by asking Whitehead when he had seen “ideological plugola” on the air.

“For me to give specific instances,” he answered slowly, “would take away from what it is I’m trying to do in terms of policy. . . . The minute I single out a particular instance or a particular reporter or a particular network, you know as well as I do the whole discussion would be turned around. . . . It would be viewed as a vendetta.”

Oh. Well, what about “elitist gossip”? On a TV interview Whitehead had defined an elitist as “someone who tells people what he thinks they ought to know instead of what they might like to know.” Is that what a newsman should do? Tell the people what they want to know?

“I guess I would stick by the dictionary definition that an elitist is someone who thinks he’s better than other people. . . . The word conjures up the kind of person who thinks he knows better what the public ought to hear than the public itself.”

I began to see what a horrible elitist grotto other professions must present to the eyes of Clay Whitehead. Elitist doctors treating patients the way they think they should, instead of the way patients want. . . . Elitist physicists publishing the math they damn well like, and to hell with the public. . . . I hadn’t appreciated the scope of the problem.

Whitehead was saying that even though his proposal might seem to make it harder for minority community groups to challenge licenses (it requires challengers to make a prima facie case before the matter is opened), he wouldn’t be surprised if it actually became easier. The President would like that, because he wants minorities of every stripe to have more influence over broadcasting in their community.

What?

“The President feels very strongly that the government’s involvement in the media should be minimized. . . . He feels very strongly that in countries where the media are owned by or controlled by the government, they tend to be bland, in many cases propaganda voices. . . . That is a very bad thing from the standpoint of developing an alive, alert, questioning citizenry. He does not want to see that kind of thing happen in this country.”

Whitehead put his feet up on the bed. Very impressive were his shoes, enormous, black, heavy shoes that looked as if they would hold him fast in an earthquake.

“We have tried to be an open administration. If you look at the whole approach this administration has taken towards communications, towards the media, it’s been very open and forthright about it. . . .”

Open and forthright? What about that June meeting with the broadcasters? Did Whitehead recall the President saying “We want to make life easier for you, you should make life a little easier for us.” Did he remember the President talking about David Brinkley?

“No. I mean, I just don’t remember.”

* * *

Soon after Whitehead told how Nixon likes stations to be responsive to the community, a couple of Nixon friends put his words into action.

In Miami, a community group headed by a lawyer named Cromwell Anderson challenged the license of WPLG-TV. Anderson said the station would serve the community better if it was owned by a local resident like him. Some members of his group were of ethnic minorities, just like those whose interests Whitehead said are constantly in the minds and hearts of the Nixon administration.

Anderson is a law partner of George Smathers, a former senator from Florida and an old friend of the President. WPLG, on the other hand, is owned by the Washington Post, a newspaper so critical of Nixon that attempts were made to partially bar it from covering the White House. When these facts were brought up, Anderson reassured everybody that they had nothing to do with his motives; he was thinking only of the good of the community.

Oddly enough, the license of another Washington Post-owned TV station in Florida, this one in Jacksonville, was challenged the same day. The citizen’s friend involved was George Champion Jr., state finance chairman of the Nixon campaign. The son of a retired chairman of the Chase Manhattan Bank, Champion was joined in the challenge by 84-year-old Ed Ball, one of Florida’s richest men. Skeptics suggested Ball may have been prompted by something other than community interest, since the station, WJXT, recently exposed (and got a law passed prohibiting) some dangerous railroad crossings including some on the Florida East Coast Railway, which Ed Ball owns. But there is no concrete proof that Mr. Ball had anything in mind but the good of the TV-viewing public.

As for Champion’s motives, some speculated that he had not entirely forgotten the case of G. Harrold Carswell, one of the two men Nixon nominated to the Supreme Court and who had been turned down by the Senate. Carswell’s downfall began with the disclosure that in 1948 he gave a speech asserting that “segregation of the races is proper and the only practical and correct way of life in our states.” That speech was dug up by an inquiring reporter from WJXT.

Champion was asked whether any of these things had entered his mind. “Absolutely not,” he said. “. . . We are a group of concerned citizens who feel the needs of the community will be served better by a television station which is community owned.”

* * *

Journalism on public television may soon become a study for historians. Early this year the Corporation for Public Broadcasting, which consists of 15 people appointed by Nixon, announced it was taking firmer control over public TV programming. Nixon was said to be concerned over the “balance and objectivity” of PBS news shows, and so the nation’s 226 noncommercial stations were told that if they want controversial news shows, or indeed news shows of almost any kind, they will have to produce them themselves. Programs already canceled or in serious trouble include Bill Moyers’ Journal, Washington Week in Review, and William Buckley’s Firing Line, the last reportedly because, though a conservative, Buckley has been critical of Nixon. Sandor Vanocur, a liberal newsman, was forced out of his PBS job in January. Black Journal, at times one of the most enterprising shows on televison, is unlikely to survive.

The Corporation for Public Broadcasting can decree this because it is the conduit for all federal funds to public televison, and the government pays about 80% of PBS’s bills. When this system was set up in 1967 its proponents said PBS would be adequately insulated from government pressure even while getting government money. So much for that argument.

A full account of the public TV story would fill a book, but its current trend was summerized by Elie Abel, a former newsman and now dean of the Columbia graduate school of journalism, who said Nixon is “lobotomizing the public television system.”

* * *

Publishers and broadcasters grappling with Nixon have begun to notice that the public has not exactly mobilized in their defense. There is a deep reservoir of public sympathy for the ideal of a free press— – nearly 60% in a poll said newsmen should be allowed to keep sources confidential— – but there seems to be little love for the news media as they are. When Agnew ran around name-calling the press, it was quite common to hear people say well, in a way, he is right.

One reason may be that over the last, say, ten years, in a society turbulent with changing opinion, the press proved not much more responsive to the public than was the government. After a lot of talk about minority hiring, America’s newspaper staffs today are 99% white. Despite great attention paid Women’s Liberation on the news pages, many papers still feature a “Women’s Section” which serves as a dumping ground for trivia, and some press clubs still bar women reporters from their annual buffooneries.

Another reason may be that the big media have not done all that good a job reporting the news. There has been little to excite the admiration of the people, to make evident to them the virtues of a free press. Most newspapers remain bland, fuddled sheets devoted to selling advertising; even when these publish important stories they are frequently so badly written as to be decipherable only by a reader with the patience of a Talmudic scholar. (Take a look at almost any story on the Watergate affair and try to figure out what it is trying to say.)

The establishment press may be said to have simply missed some of the most important stories of the Sixties— – the loss of the Vietnam War, for example. It is breathtaking to read the papers of four or five years ago and see how placidly they parroted the administration on the War. In the New York Times, where stories run long, you could read on the front page that the war was going great, then turn to the inside pages and learn the opposite. Most papers cut their stories after the front-page stuff.

The great majority of the nation’s newspaper readers followed Vietnam through reports supplied by the Associated Press and United Press International. Both wire services routinely rewrote Vietnam dispatches in New York before allowing them to be seen by the public. When an AP reporter covering the Cambodian invasion filed a story which began by describing American troops looting a village, AP editors in New York simply deleted the lead and wrote a new one of their own, dateline Cambodia.

So if the people have not rushed to the aid of the media in their current travail it may be, as publishers are fond of saying, that they are mistakenly angry at the messengers who brought them the bad news of the Sixties. Or it may be that they have more sense than that, and perceive that a great many publishers and broadcasters are more concerned with making a buck than with serving the public, and that they are therefore inclined to let the owners of the media save themselves.

Little to facilitate this rescue has yet been undertaken. A few top media people – —notably Frank Stanton at CBS, Katharine Graham at the Washington Post and Arthur Sulzberger at the New York Times— – have taken strong positions against the administration. The Wall Street Journal and the Chicago Tribune contributed money to help Peter Bridge, the New Jersey reporter who was jailed for standing up to a grand jury. But other reporters threatened with jail have had to spend their own funds and rely on friends, while giant newspapers and broadcasting corporations sat on their hands.

Neither Time nor Newsweek has spent a penny to help reporters not their own. (Time refused even to assist a prisoner who was fighting in court for the right to send uncensored letters out – —to Time.) When I asked Henry Grunwald, managing editor of Time, about this, he said that, well, nobody had ever asked. “We have quite a large number of our own reporters,” he added, “and we are absolutely ready to help them if they need help.”

And even that assistance may be cold comfort. Earl Caldwell recalls that when he went to a Times corporation lawyer who was to represent him, he was advised, “We’ve got a tremendous problem of law and order out here in the Bay Area,” and told to turn over all his tapes and notes to the lawyer, who would decide what to do with them. Caldwell walked out and finally found an attorney of his own at 5 AM, the morning he was to appear before the grand jury. The frail Reporters Committee for Freedom of the Press, assets a few thousand dollars, paid part of Caldwell’s legal expenses.

To the extent that publishers and network officials do have a plan of battle, it centers on the hope for a federal “shield” law to protect names and information obtained by reporters in confidence. More than 40 proposed shield laws have descended on Congress this session. Some would completely protect every newsman; others hedge a bit, making exceptions for reporters who learn of serious crimes and so forth. Some effect only federal jurisdictions; others would restrain the states as well.

CBS, NBC and (though less clearly) ABC have come out for an absolute shield, as have the National Reporters Society and the Publishers Association. How hard these organizations will work for the actual passage of a bill remains to be seen.

A major concern is that if they do not, Congress will pass a compromise law that would reduce freedom of the press in the name of promoting it. Abe Rosenthal of the Times favors a shield law but worries about this possibility.

“I think there’s a hell of a danger,” he said. “I don’t like the whole thing. I don’t like laws that are protective of newspapers and I don’t like laws that are repressive of newspapers, and I’ve thought about this until my eyeballs bubble. . . . But I think that after the Caldwell case, with so many things happening around the country, the lesser of two evils is to get some legislation.”

Eighteen states have shield laws of their own, but in many they have been circumvented by determined prosecutors or hostile judges. New York has a strong law, but when radio station WBAI refused to turn over tapes to a prosecutor, the station manager, Ed Goodman, got sent to jail anyway. Paul Branzburg was sentenced to jail despite the Kentucky shield law.

Maryland has such a law too, but a Baltimore Evening Sun reporter named David Lightman has had to appeal to the Supreme Court to avoid telling a grand jury the identity of a girl he wrote offered him marijuana in an Ocean City psychedelia shop. The state supreme court ruled against Lightman because he posed as a customer in the shop. Had he identified himself as a reporter he would have been protected, reasoned the court. Such are the dimensions of the loophole through which a man can be pushed.

* * *

Into all this has come, with unfortunate timing, a proposal from the Twentieth Century Fund in New York to set up a National News Council to check on the performance of the nationwide news media.

The council is to have 15 members, some of them journalists, some not. It is to investigate “complaints concerning the accuracy and fairness of news reporting” and look into freedom of the press disputes. According to its sponsors it would help enhance the “credibility” of the press, which is a voguish way of saying that when the public thinks the press is lying this would decide whether it was or not.

The council would have no power except to publish its decisions, but it has run into opposition from the media anyway. The New York Times said it would refuse to answer questions. Nobody I talked to at any of the networks or the news magazines showed enthusiasm for the idea. Henry Grunwald at Time said “There seems to be a kind of underlying assumption that, ‘Boy, if you don’t police yourselves, if you don’t straighten out your ways, somebody else will do it for you.’ It’s a little like the Hollywood production code of some decades ago.” In a poll taken just before the council was officially announced, newspaper editors opposed any such idea four to one.

Still, most of the people who would be involved— – the networks, wire services, news magazines and major newspapers— – are likely to cooperate grudgingly if the council gets started, since cooperation would mean little more than answering council questions.

Britain set up a press council in 1953 after the government threatened to create one of its own. Friends of the American plan point to the success of the English panel in defending press freedom by investigating complaints itself instead of leaving the government to do it.

But freedom of the press in England means something different than it does in the US. An official secrets act makes it a crime to publish any official document, secret or not, without permission; if such a law obtained in America the editors who published the Pentagon Papers would probably be in jail to this day, and they would have plenty of other editors and reporters to keep them company. British newsmen covering a trial are allowed to report only what takes place in open court. Late last year the Sunday Times of London was forbidden to publish a long article on thalidomide because the piece might interfere with negotiations between the company that manufactured the drug and its deformed victims.

The worst liability of the American press council proposal may be that it stepped in at a bad point. “At a time when newsmen are going to jail for practicing their craft,” said Elmer Lower, president of ABC News, “the appointment of yet another self-appointed monitoring organization is an unnecessary irony.”

* * *

In many ways the administration already has won.

Television has been in retreat for two years since Agnew went after The Selling of the Pentagon. Strong news documentaries, never frequent, are now almost nonexistent. A new Columbia University survey of broadcast journalism said that in 1972, “network television looked as though it were trying to lose its documentarians . . . refusing them the opportunity to do their best, cutting off their time and money, keeping them from prime spots on the schedules.”

I spoke to an investigative reporter I used to work with at the New York Post and he sounded like an embezzler or a spy. “I don’t keep any diaries or phone books,” he said. “Before a story gets into print I destroy any notes and telephone numbers, and erase all the tapes I have made.” Sometimes he tells sensitive information to a prominent and friendly official, who tells it back to him, so he can quote the official in his story and by this elaborate dance conceal his real source.

“I don’t see myself as a crusading reporter anymore,” he said. “The personal gratification is gone. Personal gratification means you’re in the spotlight and you can be put in jail. I do not want to go to jail.”

A top investigative reporter in Washington who has a wife and family informed his editor he will no longer work on stories where he might be required to protect the identity of a confidential source. Earl Caldwell told the Times the same.

Paul Branzburg, after early success reporting on drugs in Kentucky, found in Detroit that dope dealers knew he had lost his Supreme Court case. He says one dealer told him, “I believe you, Paul, you’ve shown me all the clips and I believe you’re not a cop, and I believe that in my case you wouldn’t want to talk. But you can’t give me an absolute guarantee. They will probably put your ass in jail if I talk to you. They’re gonna want to know who I am. Once you’re in that jail you might get raped, beaten, who knows? If you started to wilt in there, I’d know about it, and I’d have to have you killed. I can’t risk my ass that you won’t wilt.”

I called Les Whitten shortly after the FBI arrested him with the Indian documents. He is 44 years old, married, has three children.

“If push comes to shove I’ll still take the plunge on a story, even if maybe I’m being set up,” he said. “I’ve been at it too long not to. But when I do, I’m going to be one scared sonofabitch. That’s the difference.

“This is really a bad business, you know? You lose weight and all. . . . It’s just no fun. I’m not very heroic, but at the same time, I’ve been in the business for a long time and it’s the way I make my living.

“Anyway, I’m not gonna let those bastards beat me.”

In This Article: Coverwall

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