Using the First Amendment

There are two very different types of stories that a commentator often finds himself torn between. There's what you might call the well-informed story, which no well-informed man or woman should be ignorant about. I suppose the coming summit meeting at Camp David of Mr Carter, Mr Begin and Mr Sadat is such a story.

And Mr Carter's desperate search for a new, sharp image is another, since the Republicans have now decided that he's the best asset they have going for them in the next presidential election and this week at least half a dozen Republicans decided, a little early in the game, to see themselves as the next president. 

But there's another type of story that exercises a much more powerful tug on the emotions and encourages a commentator to skip the new settlements on the West Bank and turn his eyes, this week, the East Side of New York and to the ears of what everybody he runs into, from close friends to cab drivers, are talking about. There are two such stories that have come up this week. 

A murder in Manhattan that might have come straight out of 'Columbo' or 'The Streets of San Francisco'. Very briefly – early last Sunday morning, a girl model and her boyfriend were leaning on the guard rail of an apartment house roof when the rail broke. They fell 17 storeys and the girl was killed. At the very moment this happened, another model, a friend of the first, turned the key in the penthouse flat of her new lover with whom she'd moved in two weeks before. This flat was next door to the similar penthouse flat of an old lover that she'd left two weeks ago. When she walked in, she found the flat a shambles, with much broken glass, ripped curtains, bloodstains. She called the police. She rang the bell of her old lover's neighbouring flat and he was not at home. 

That Sunday afternoon, about 12 hours later, miles north of the city, a yellow Cadillac skidded to a stop in a vacant lot. Two men got out, lugged a big chest from the boot, poured gas over it, lit it, jumped in and away. There was a witness sufficiently goggle-eyed to take down the Cadillac's licence plate number and phone it to the police and two policemen in a roving car spotted the Cadillac, stopped it and one of the two men identified himself as the live model's old lover. The burnt-out chest contained the dead body of the model's new lover. 

Well, that's as far as we ought to go with that Hitchcock melodrama. The other story is a more disturbing one, about a trial in San Francisco which came about this way. On an autumn evening, four years ago, a young mother in San Francisco was watching, with her nine-year-old daughter, a movie made for television. It was highly promoted. Its star was the young girl well-remembered from 'The Exorcist'. It was called 'Born Innocent' and was about the inmates of a girl's reform school. At one point, four girls picked on the innocent one and raped her. 

Four days later, the nine-year-old who'd watched this horror was playing near her home when a young boy and three young girls came on her and raped her in much the same fashion. The boy served three years in prison, but the mother of the real-life innocent sued the network for $11 million in damages. That was four years ago, remember. 

And after long legal wrangling, the case came up in San Francisco last week, charging the network with negligence by incitement. After a day or two, the judge warned the prosecuting lawyer that proof of incitement would require him to prove that, as he put it, the defendant had intended the crime to occur. In other words, that the network showed 'Born Innocent' with the aim of inciting children to commit rape. The mother's lawyer, understandably, said it would be idiotic for him even to try to prove that intent. So the judge dismissed the case. 

The network lawyers said it was a marvellous vindication of the First Amendment. The mother's lawyer said, more tartly, 'We will be using the First Amendment as a sword to kill off the minds of our youngsters. Our noses are rubbed in the sewer in the name of the First Amendment.’ And when it was over, this lawyer said that he would file an immediate appeal on the ground that the judge had no power to narrow the issue of a negligence suit to incitement. 

This case brings up in a horribly dramatic form, the nagging and never-resolved question of whether violence on television provokes violence in life. For years, parents and clergymen – maybe I should say 'some' parents and 'some' clergymen – have said, or suspected, that it might. And for years many psychiatrists have said that psychotics who are ready to commit violent acts will use any inspiration that happens to be handy and television is only one such source. 

I'd be tempted to go on about this if it were not for the warning of a case less horrendous but equally serious which put a respected newspaper man in jail in New Jersey. This case is, in fact, about the right of a reporter to keep secret his confidential sources of information. Just over a week ago, a reporter for the New York Times, M. A. Farber, went to jail for contempt of court. He'd done some private digging in a murder case and much of what he wrote was partly responsible for bringing the defendant to trial. 

The defence maintains that the reporter's notes should be opened to the court if the defendant is to have a fair trial, according to the guarantee of the Sixth Amendment to the Constitution which says, among other things, 'in all criminal prosecutions, the accused shall be confronted with the witnesses against him and have compulsory process for obtaining witnesses in his favour'. The defence, therefore, claims 'compulsory process' should apply to Mr Farber's notes taken from conversations, or whatever, with his confidential sources. 

Mr Farber, the reporter, on the other hand, says that if the courts require reporters to reveal all their sources, the press would no longer be able to report anything freely. Reporters would work under a 'gag' rule and that gag would violate the First Amendment to the Constitution which says quite baldly, perhaps too baldly, ‘Congress shall make no law abridging the freedom of speech or of the press'. 

Now that right is so grandly, so vaguely, stated that in the past few years it has been claimed, and successfully, as a protection against prosecution by blasphemers, rock lyricists, the makers of raw, core pornographic movies, sleazy editors, the producers of live sex shows, home-grown Nazis – you name it. But the First Amendment, if it seems to give a licence to the licentious, also gives a vital protection to a press anxious to dig for the truth about great issues and expose them to the people. If Woodward and Bernstein had been compelled, early in their Watergate digging, to reveal all their notes and sources... suppose, for instance, the courts had forced them to unveil the identity of Deep Throat, there probably would have been no Watergate exposure and no abdication by Richard Nixon. 

Yet, Mr Farber is in jail and the New York Times is paying out $5,000 (about £2,500) a day, so long as it refuses to unlock Mr Farber's notes. The Times contends that the First Amendment's protection of the press extends to the gathering as well as the printing of news. Frightened, threatened or embarrassed sources daily offer our reporters fact, confession, rumour or accusation on condition that their identity remain secret. To betray one such source would jeopardise all. 

There have been one or two other cases in the past, similar cases and in one that went to the Supreme Court, the newspaperman lost by a five to four decision of the nine justices – a very close thing, proving to nobody's satisfaction that, in matters of great moment, it's not the nine old men who decide but the one man who's persuaded to move over from the minority to the majority. 

In that case, the majority said that while the prospect of having to betray a confidence imposes on the reporter a consequential burden, they did not think that all confidential sources from then on would hang back from saying what they knew. It's a very iffy question. The dissenting minority in that case said that informants are necessary to news gathering and one judge wrote, 'if the press is to perform its constitutional mission, it must do far more than merely print public statements or publish prepared handouts'. 

And the most liberal member of the court in those days, Mr Justice Douglas, put it on the line. 'The press', he wrote, 'has a preferred position in our constitutional scheme not to enable it to make money, not to set newspaper men apart as a favoured class, but to bring fulfilment to the public's right to know.' And that's the question. Is a reporter, by dint of his trade, in a 'preferred' position in society over other citizens? 

The Times, and I should guess every other newspaper, says, yes, by the very nature of his trade whereas a plumber's job is to discover a leak in a water pipe, a reporter's job is to find out where the truth is leaking. Otherwise he'd be at the mercy of official sources and no other. He would be, for instance, as one old newspaper man suggests – and I'm not going to tell anybody who he is – he would be at the mercy of police informers without being able to check what they say against informers of his own. 

I always remember a saying of the prosecutor in the Hiss case, when the defence protested that some item, some report was produced by an informer. 'Show me,' said the prosecutor, 'show me a police department without stool pigeons and I'll show you a poor police department.' 

What the Times is saying, in effect, is, 'Show me a newspaper denied confidential sources and I'll show you a poor newspaper!' The Times means to battle this thing through, if need be to the Supreme Court. 

One case that will not go to the Supreme Court is that of a lady who, this week, walked into a supermarket, picked up two strawberries from a tray and ate them. A guard asked her to pay two cents. She refused. She was charged with shoplifting and sentenced to serve half a day's labour in the local park. She served.

This transcript was typed from a recording of the original BBC broadcast (© BBC) and not copied from an original script. Because of the risk of mishearing, the BBC cannot vouch for its complete accuracy.

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