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The Rights of Myron Farber
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October 26, 1978 | New York Review of Books
Dr. Mario Jascalevich is on trial in New Jersey, charged with the
murder, by curare poisoning, of a number of hospital patients in 1965
and 1966. His indictment was the direct result of a series of articles
about the deaths of these patients written by a reporter for The New
York Times, Myron Farber. Jascalevich's lawyer. Raymond Brown, asked
the trial judge to order Farber and the Times to turn over to the
defense all the notes, memoranda, interview records, and other material
Farber compiled during his investigation. Judge Arnold ordered,
instead, that all such material be delivered to him, so that he himself
could determine whether any of it was sufficiently relevant that it
should be given to Brown. Farber refused this order, and was jailed for
contempt, though he has since been released. The Times at first refused
to deliver any material in its control, and was also cited for
contempt, and forced to pay large daily fines. It has since handed over
certain files, but the judge who imposed the fines, Judge Trautwein,
charges that these files have been "sanitized," and do not cure the
contempt.
Farber and the Times appealed to the New Jersey Supreme Court (whose
decision against their appeal was announced just as this issue of The
New York Review went to press). They claim that Judge Arnold's order
was illegal on two different grounds. They argue that the order
violated the New Jersey "Shield Law," which provides that in any legal
proceeding a newman "has a privilege to refuse to disclose" any
"source" or "news or information obtained in the course of pursuing his
professional activity." They also argue that, quite apart from the
Shield Law, the order violated their rights under the First Amendment
to the U.S. Constitution which provides for "freedom of the press."
Each of these legal arguments is controversial. It is arguable that the
Shield Law, in so far as it grants newsmen a privilege not to disclose
information which might tend to prove an accused criminal innocent, is
unconstitutional because it denies the accused a right to a fair trial
guaranteed by the Sixth Amendment. If so, then Judge Arnold acted
properly in asking that Farber's notes and material be furnished to him
privately so that he could determine whether any of them might tend to
support Dr. Jascalevich's innocence.
The First Amendment argument is weaker still. The Supreme Court in a
1972 decision. Branzburg v. Hayes denied that the First Amendment
automatically grants newsmen a privilege to withhold sources and other
information in legal proceedings. Four of the five majority justices
stated categorically that newsmen have no special privilege under the
First Amendment beyond those of ordinary citizens. Mr. Justice Powell
agreed that the reporters in the cases the Court was considering did
not have the privileges they asserted. But he added, in a short and
cryptic concurring opinion, that in some circumstances the First
Amendment might require courts to protect newsmen from disclosure
orders which serve no "legitimate need of law enforcement." He spoke of
the need to strike "a proper balance between freedom of the press and
the obligation of all citizens to give relevant testimony with respect
to criminal conduct."
I do not interpret Powell's opinion as recognizing a First Amendment
privilege against disclosure ordered at the request of a criminal
defendant, which is a very different matter from disclosure requested
by the prosecution or other law enforcement agencies. State courts have
disagreed about the correct interpretation of Powell's opinion,
however, and some have recognized a newsman's privilege to withhold
information requested by the defense when it appears that that
information would be at best only tangentially relevant to the
defense's case. But even if this interpretation of Powell's opinion is
correct, Judge Arnold acted properly in ordering the material furnished
to him privately, so that he could determine its relevance and
importance to the defense, and the extent to which "freedom of the
press" would be compromised by its public disclosure.
So it is at least doubtful that the legal arguments on which Farber and
the Times rely are sound. The affair has been debated publicly,
however, not as a technical legal issue but as an event raising
important questions of political principle. Commentators say that the
dispute is a conflict between two fundamental political rights, each of
which is protected by the Constitution. Farber and the Times (supported
by many other newspapers and reporters) appeal to the right of free
speech and publication: they say that this right, crucial in a
democracy, is violated when the press is subjected to orders that
impede its ability to gather information.
Those who support Judge Arnold argue that the right of free speech and
publication, though of fundamental importance, is not absolute, and
must sometimes yield to competing rights. They therefore appeal to the
principle, which they take to be paramount, that a criminal defendant
has a right to a fair trial, which right, they say, includes the right
to use any material that he might reasonably think supports his
innocence. Both sides share the assumption that in these circumstances
one or both of two important civil rights must be compromised to some
degree, though they disagree where the compromise should he struck.
But the assumption they share is wrong. The privilege claimed by Farber
has nothing to do with the political right to speak or publish free
from censorship or constraint. No official has ordered him not to
investigate or publish what he wants, or threatened him with jail for
what he did publish, Judge Arnold's subpoena is very different from the
government's attempts to stop The New York Times from publishing the
Pentagon Papers or from the prosecution of Daniel Ellsberg or even the
civil actions against Frank Snepp. It is, no doubt, valuable to the
public that reporters have access to confidential information. But this
is not a matter of anyone's right. The question raised by the Farber
case is not the difficult question of how to compromise competing
rights, but the different question of how much the efficiency of
reporters, valued by the public, must nevertheless be sacrificed in
order to ensure that Dr. Jascalevich's right to a fair trial is not
compromised at all.
The public argument over the Farber case fails to notice an important
distinction between two kinds of arguments that are used to justify a
legal rule or some other political decision. Justifications of
principle argue that a particular rule is necessary in order to protect
an individual right that some person (or perhaps group) has against
other people, or against the society or government as a whole,
Antidiscrimination laws, like the laws that prohibit prejudice in
employment or housing, can be justified on arguments of principle:
individuals do have a right not to suffer in the distribution of such
important resources because others have contempt for their race.
Justifications of policy, on the other hand, argue that a particular
rule is desirable because that rule will work in the general interest,
that is, for the benefit of the society as a whole. Government
subsidies to certain farmers, for example, may be justified, not on the
ground that these farmers have any right to special treatment, but
because it is thought that giving subsidies to them will improve the
economic welfare of the community as a whole. Of course, a particular
rule may be justified by both sorts of arguments. It may be true, for
example, both that the very poor have a right in free medical treatment
and that providing treatment for them will work for the general
interest because it will provide a healthier labor force.
But the distinction is nevertheless of great importance, because
sometimes principle and policy argue in opposite directions, and when
they do (unless the considerations of policy are of dramatic
importance, so that the community will suffer a catastrophe if they are
ignored) policy must yield to principle. It is widely thought, for
example, that crime would decrease, trials be less expensive, and the
community better off as a whole if strict rules of criminal procedure
that guard against the conviction of the innocent, at the inevitable
cost of some acquittal of the guilty, were abandoned. But that is an
argument of policy against these procedural rules and so it would not
justify relaxing the rules if those who are accused of crime have a
right (as most liberals think they do) to the protection the rules
provide.
The distinction between principle and policy is relevant to Farber,
because the arguments Farber and the Times make, in defense of a
special newsman's privilege to withhold information, are arguments of
policy not principle. I do not mean that classical First Amendment
arguments are arguments of policy; on the contrary the core of the
First Amendment is a matter of principle. Individual citizens have a
right to express themselves free from government censorship; no
official may limit the content of what they say, even if that official
believes he has good policy reasons for doing so, and even if he is
right. Many Americans thought that it was in the national Interest to
censor those who opposed the war in Vietnam. No doubt it was in the
interest of the community of Skokie that the American Nazi Party be
forbidden to march through that town. But as a matter of principle the
war protesters had a right to speak and the Nazis a right to march,
protected by the Constitution, and the courts so decided.
Reporters, columnists, newscasters, authors, and novelists of course,
have the same right of free expression as other citizens, in spite of
the great power of the press. Peter Zenger, the colonial publisher with
whom Farber is sometimes compared, was jailed because he attacked the
governor in print, and it was the object of the press clause of the
First Amendment to prohibit that form of censorship. But newsmen do not
as a matter of principle, have any greater right of free speech than
anyone else.
There are, however, reasons of policy that may justify special rules
enhancing the ability of newsman to investigate. If reporters
confidential sources are protected from disclosure, more people who
fear exposure will talk to them, and the public may benefit. There is a
particular need for confidentiality, for example, and a special public
interest in hearing what informers may say, when the informer is an
official reporting on corruption or official misconduct, or when the
information is information about a crime.
This is the argument of policy that justifies the Shield Laws many
states have enacted, like the New Jersey law described earlier, and
that justifies a variety of other special privileges newsmen enjoy. The
Justice Department has adopted guidelines, for example instructing its
agents not to seek confidential information from reporters unless the
information is crucial and unavailable from other sources. The special
position of the press is justified, not because reporters have special
rights but because it. Is thought that the community as a whole will
benefit from their special treatment, just as wheat farmers might be
given a subsidy, not because they are entitled to it, but because the
community will benefit from that.
The Times's own arguments confirm that the privilege It seeks is a
matter of policy not principle. It argues that important sources will
"dry up" if Judge Arnold's order is upheld. It is hard to evaluate that
argument, though it does not seem powerful, even as an argument of
policy. The Supreme Court's decision in Branzburg v. Hayes, though its
full force is debatable, plainly held that a reporter may be forced to
reveal his sources when that information would be crucial to a
defendant's case, as determined by a trial judge. So even now reporters
cannot, or should not, flatly promise an informer confidentiality. Any
such promise must be qualified, if the reporter is scrupulous, by the
statement that under certain circumstances, not entirely defined by
previous court decisions, and impossible to predict in advance, a court
many legally compel disclosure.
Judge Arnold's order in the Farber case—that he be allowed to review it
reporter's notes to determine whether any material there would be
important to the defendant's case even though the defense has not
demonstrated the probability of such material—arguably extends the
Branzburg, limitations on confidentiality. But it is unclear how much
the extension. If any, increases the risk that public disclosure will
in the end be made, and unclear whether there are many informers not
already deterred by Branzburg who would be deterred by the additional
risk of disclosure to a judge alone. It is therefore entirely
speculative how far the general welfare would suffer if the information
that might be provided by informers of that special sort were lost.
In any event, however, this argument of policy, however strong or weak
as an argument of policy, must yield to the defendant's genuine rights
to a fair trial, even at some cost to the general welfare. It provides
no more reason for overriding these rights than the policy argument in
favor of convicting more guilty criminals provides for overriding the
rights of those who might be innocent. In both cases, there is no
question of competing rights, but only the question of whether the
community will pay the cost in public convenience or welfare, that
respect for individual rights requires. The rhetoric of the popular
debate over Farber, which supposes that the press has rights that must
be "balanced" against the defendant's rights. Is profoundly misleading.
It is also dangerous because this rhetoric confuses the special
privileges newspapers seek, justified an grounds of policy, with
genuine First Amendment rights. Even if this special privilege has some
constitutional standing (as the four dissenting justices in Branzburg
suggest), it has been and will continue to he sharply limited to
protect a variety of other principles and policies. It would be
unfortunate if these inevitable limitations were understood to signal a
diminished concern for rights of free speech generally. They might then
be taken as precedents for genuine limitations on that fundamental
right—precedents, for example, for censorship of political statements
on grounds of security.
It is both safer and more accurate to describe the privilege of
confidentiality the press claims not as part of a constitutional right
to freedom of expression or publication but as a privilege frankly
grounded in efficiency, like the privilege the FDI claims not to name
its informers, of the executive privilege Nixon claimed not to turn
over his tapes, in Rovario v. U.S., the Supreme Court held that neither
the FBI nor its informers have any right (even a prima facle right) to
secrecy, although it conceded that for reasons of policy, it would be
wise for coarts not to demand disclosure in the absence of some
positive showing that the information would be important to the defense.
A president's executive privilege is, as the Court emphasized in the
Nixon case, not a matter of his right, or the right of the government
as a whole. It is a privilege conferred for reasons of policy, in order
that the executive may function efficiently, and it must therefore
yield when there is reason to believe that a different public
interest—the public's interest in guarding against executive
crime—demands constraint on the privilege. If the strong policy
arguments in favor of executive privilege must yield when that
privilege would jeopardize the prosecution of a crime, then a fortiori
a newsman's privilege, supported by weaker policy arguments must yield
when it opposes a defendant's right to gather material that might prove
him innocent.
So the question raised by Farber is simply the question of how far the
defendant's moral and constitutional right to information extends, not
simply against newsmen, but against anyone who has the information he
wants. Several shrewd commentators, who do not dispute that the
newsman's privilege must give way if the information in question is
vital, to the defense, nevertheless argue that Judge Arnold's order was
wrong in this case because Brown, the defense lawyer, had not shown any
reasonable prospect that Farber's notes were important to his case.
They point out that it would be intolerable if every criminal defendant
was able to subpoena all the notes and files of any newspaper which had
reported on his case, in the thin hope that something unexpected might
turn up. Lawyers call that sort of Investigation a "fishing
expedition"; and courts have always refused defendants an opportunity
to fish in anyone's files.
Indeed, it has been suggested that Brown made his request not because
he believed he would discover anything useful to his client but because
he hoped that the request would be refused so that he could later
claim, on appeal, that the trial was unfair. (It has also been
suggested that Judge Arnold ordered the material requested to be shown
to him privately, instead of rejecting the request outright, to
frustrate this supposed strategy.) It would have been better (these
commentators suggest) for the judge to require some initial showing by
the defense why it was reasonable to suppose that the files would
contain relevant material, before ordering the files to be shown to him
alone.
Even this more moderate position seems wrong on the facts of this
particular case, however, Farber's investigations were responsible for
the police reopening a murder case years after their own investigation
had been suspended. He accumulated a great deal of information not
previously available, and it is not disputed that this information was
the proximate cause of the indictment. In particular, Farber discovered
and interviewed witnesses who now appear to be vital to the prosecution
and who might have made statements to him that either amplified or
contradicted their testimony or the accounts he published. There is, of
course, no suggestion here that Farber has deliberately withheld
anything that would be helpful to the defense. But he, like any other
reporter, exercised editorial judgment, and he should not, in any case,
be expected to the sensitive to the same details that would interest a
good lawyer whose client is on trial for murder.
These facts are sufficient to distinguish the present case from
imagined cases in which the newspaper has done not much more than
report on facts or proceedings developed or initiated by others. Judge
Arnold held that Farber's unusual role in the case in itself
constituted a showing of a sufficient likelihood that his files contain
material a competent defense lawyer should see; sufficient at least to
justify the judge's own preliminary examination of the file. Perhaps he
would have required a further showing of probable relevance, or a more
precise statement of the material sought, if the trial were not a trial
for murder. Perhaps another judge would have required some further
precision even in a murder case. No doubt Judge Arnold should have held
a hearing at which lawyers for Farber and the Times could have put
their legal objections and asked for greater specificity before they
were found in contempt. (The New Jersey Supreme Court has now held that
in the future such a hearing must be held if requested.) Nevertheless
Judge Arnold's decision, that the facts of this case in themselves
constitute the necessary demonstration, shows commendable sensitivity
to the problems of a defendant faced with an investigation whose very
secrecy deprives him of the knowledge he needs to show his need to know.
But it was not, I should add, reasonable to order Farber to jail or to
order the Times to pay punitive dally fines while their legal arguments
were pending before appellate courts. They relied a good faith on their
understanding of the shield Law and the First Amendment[*]. It is
useless to say that they should have compiled with Judge Arnold's
order, and contested its legality later. They believed that their
rights would have been violated, and the principles at stake
compromised, even by an initial compliance with the judge's order. They
were wrong, but our legal system often gains when people who believe
that law and principle are on their side choose not to comply with
orders they believe illegal, at least until appellate courts have had a
chance to consider their arguments fully, and it served no purpose to
jail Farber or fine the Times before their arguments were heard. Certainly it was not necessary to defend the dignity of Judge Arnold's
court or of the criminal process. If Farber and the Times make
immediate appeal to the U.S. Supreme Court, the New Jersey Supreme Court,
even though it has upheld Judge Arnold's decision, should stay
execution of further fines, and of its order that Farber return to
jail, pending an expeditious ruling on that appeal.
The courts must at all costs secure Dr. Jascalevich's right to a fair
trial. But within that limit they should show, not outrage, but
courtesy and even gratitude to people like Myron Farber who act at
personal sacrifice to provide the constant judicial review of principle
that is the Constitution's last protection.
Notes
[*] Federal Judge Laccy, in a hearing on Farber's petition for habeas
corpus, emphasized that Farber had undertaken to write a book about the
Jascalevich case. Many newspapers and columnists have since assumed
that the proposed book weakens Farber's case either legally or morally.
It seems to me, on the contrary, almost irrelevant. Farber's contract
with his publisher does not make the book's publication conditional on
the conviction of Jascalevich, and there ie: no shred of evidence
either that Farber will publish in the book material that he sought to
withhold from the court or that he has any financial or personal stake
in Jascalevich's conviction. There is no reason to doubt that Farber
would have acted just as he did even if he had not planned to write a
book.
Copyright © 1978 New York Review of Books. Reprinted with permission.
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