ZURCHER V. STANFORD DAILY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000300040017-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 352
• Document Creation Date: December 20, 2016
• Document Release Date: May 23, 2007
• Sequence Number: 17
• Publication Date: April 25, 1979
• Content Type: OPEN SOURCE

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ZURCHER v. STANFORD DAILY
HEARINGS
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
NINETY-SIXTH CONGRESS
FIRST SESSION
ON
H.R. 3486 AND H.R. 4181 AS RELATED TO
ZURCHER V. STANFORD DAILY
SERIAL NO. 18
U.S. GOVERNMENT PRINTING OFFICE
49-631 WASHINGTON : 1979
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COMMITTEE ON THE JUDICIARY
PETER W. RODINO, JR., New Jersey, Chairman
JACK BROOKS, Texas
ROBERT W. KASTENMEIER, Wisconsin
DON EDWARDS, California
JOHN CONYERS,.JR., Michigan
JOHN F. SEIBERLING, Ohio
GEORGE E. DANIELSON, California
ROBERT F. DRINAN, Massachusetts
ELIZABETH HOLTZMAN, New York
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES; New Jersey
SAM B. HALL JR., Texas
LAMAR GUDGER, North Carolina
HAROLD L. VOLKMER, Missouri
HERBERT E. HARRIS If, Virginia
MICHAEL LYNN SYNAR, Oklahoma
ROBERT T. MATSUI, California
ABNER J. MIKVA, Illinois
MICHAEL D. BARNES, Maryland
RICHARD C. SHELBY, Alabama
ROBERT McCLORY, Illinois
TOM RAILSBACK, Illinois
HAMILTON FISH, JR., New York
M. CALDWELL, BUTLER, Virginia
CARLOS J. MOORHEAD, California
JOHN M. ASHBROOK, Ohio
HENRY J. HYDE, Illinois
THOMAS N. KINDNESS, Ohio
HAROLD S. SAWYER, Michigan
DAN LUNGREN, California
JOSEPH L. NELLIS, General Counsel
GARNER J. CLINE, Staff Director
FRANKLIN G. POLK, Associate Counsel
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION
OF JUSTICE
ROBERT W. KASTENMEIER, Wisconsin, Chairman
GEORGE E. DANIELSON, California TOM RAILSBACK, Illinois
ROMANO L. MAZZOLI, Kentucky CARLOS J. MOORHEAD, California,
LAMAR GUDGER, North Carolina HAROLD S. SAWYER, Michigan
ROBERT T. MATSUI, California
ABNER J. MIKVA, Illinois
BRUCE A. LEHMAN, Chief Counsel
TIMOTHY A. BOGGS, Professional Staff Member
GAIL HIGGINS FOGARTY, Counsel
MICHAEL J. REMINGTON, Counsel
THOMAS E. MOONEY, Associate Counsel
JOSEPH V. WOLFE, Associate Counsel
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CONTENTS
HEARINGS HELD Page
April 25, 1979------------------------------------------------- 1
May 24, 1979------------------------------------------------- 29
May 25,1979------------------------------------------------- 61
May 31, 1979------------------------------------------------- 85
June 1, 1979-------------------------------------------------- 161
TEXT OF BILLS
H.R.3486----------------------------------------------------- 305
H.R.4181---------------------------------------------------- 313
WITNESSES
Bailey, Charles W., Minneapolis Tribune, Amerihan Society of Newspaper
Editors--------------------------------------------------------- 86
Beigler, Dr. Jerome S., University of Chicago, Pritzker School of Medicine,
American Psychiatric Association__________________________________ 179
Prepared statement____________________________________________ 182
Davis, Paul, Radio Television News Directors Association______________ 29
Prepared statement--- ________________________________ 32
Friedheim, Jerry W., American Newspaper Publishers Association---____ 86
`Prepared statement------------------------------------------- 95
Hansen, Robert B., Attorney General of the State of Utah; National
Association of Attorneys General__________________________________ 74
Prepared statement____________________________________________ 81
Heymann, Philip B., Assistant Attorney General, Criminal Division,
Department of Justice___________________________________________ 9
Prepared statement____________________________________________ 9
Koletsky, Joy, Reporters Committee for Freedom of the Press ---------- 86
Landau, Jack, Reporters Committee for Freedom of the Press ----------- 86
Prepared statement__________________________________ -------------------------------------------- 119
Lewis, Robert, Society of Professional Journalists______________________ 86
Prepared statement____________________________________________ 104
Pauley, Roger, Office of Legislation, Criminal Division, Department of
Justice--------------------------------------------------------- 9
Shattuck, John H. F. American Civil Liberties Union__________________ 40
Prepared statement____________________ -------------------------------------------- 40
Small, William J., vice president, Washington, CBS, Inc--------------- 3
Tushnet, Mark, professor of law, University of Wisconsin -------------- 61
Prepared statement____________________________________________ 61
Williams, Richard J., Atlantic County, N.J. prosecutor, National District
Attorneys Association____________________________________________ 164
Prepared statement____________________________________________ 164
ADDITIONAL STATEMENTS
Green, Hon. S. William, a Representative in Congress from the State of
New York ------------------------------------------------------
McClosky, Hon. Paul N., Jr., a Representative in Congress from the
State of California_______________________________________________
161
163
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APPENDIXES
Appendix 1-Legal materials:
Page
A. Zurcher, Chief of Police of Palo Alto, et at. v. Stanford Daily et al__
191
B. David O'Conner v. Robert F. Johnson, Judge of County Court, County
of Ramsey, Minnesota. Re: Petition to quash search warrant---
228
Appendix 2-Legislative material:
A. H.R. 3486 as introduced April 15, 1979________________________
305
B. H.R. 4181 as introduced May 22,1979________________________
313
Appendix 3-Law review articles: - A. John Kaplan, "Search and Seizure: A No-Man's Land in the Cri-
minal Law" California Law Review, vol. 49, No. 3, August 1961 _
318
B. Mitchel Arnold, Communications Law Clinic, New York Law
Memorandum: Constitutionality of Proposed Federal Legislation
Overruling Zurcher v. Stanford Daily, July 11, 1979 -----------
335
Appendix 4-Other materials:
A. Statement of R. Michael Cole, director of legislative activities for
. Common Cause------------------------------------------
344-
B. Related bills presently before the State of Wisconsin Legislature,
;
1979, senate bill 221, and 1979 assembly bill 94_______________
345
C. Statement of Robert W. Johnson, County Attorney of Anoka
County, Minnesota to the Minnesota County Attorneys
Association, June 20, 1979_________________________________
346
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ZURCHER V. STANFORD DAILY
r r HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE
OF THE COMMITTEE ON THE JUDICIARY,
k, Washington, D.C.
The subcommittee met at 1:30 p.m., in room 2237, Rayburn House
Office Building, Hon. Robert W. Kastenmeier (chairman of the sub-
committee) presiding.
Present: Representatives Kastenmeier, Gudger, and Railsback.
Staff present: Bruce A. Lehman, chief counsel; Joseph V. Wolfe,
associate counsel; and Audrey Marcus, clerk.
Mr. KASTENMEIER. The committee will come to order, please.
The Chair has an opening statement, and we expect to be joined
by other members very shortly.
Privacy is an essential element in the law of civil liberties. This com-
mittee, which has jurisdiction over civil liberties legislation in the
House of Representatives, has had a long standing involvement in
protecting, expanding, and defining the law of privacy in an era of
rapid technological change.
Our interest in first amendment privacy issues goes back almost
10 years, to September 1969, when we conducted hearings on legisla-
tion to define the law of obscenity. Our work in that area was followed
by extensive hearings, spanning three Congresses, on the issue of the
rights of journalists to protect the confidentiality of news sources.
The other great constitutional pillar of privacy laws, the fourth
amendment, has also received considerable legislative attention from
this subcommittee. Of course the entire legal framework governing the
use of wiretapping and electronic surveillance in the United States
emanates from title III of the 1968 Omnibus Crime Control and Safe
Streets Act, which was processed by the Committee on the Judiciary
during the 90th Congress.
Six years later, in April 1974, amid the plethora of revelations of
Government spying associated with the Watergate crisis, this sub-
committee began an extensive review of Government surveillance
tactics, concentrating on national security eavesdropping, surveillance
of the mails, and inspection of third party held records.
The results of the subcommittee's work were two bills, ultimately
enacted with the cooperation of other committees of the House-the
Foreign Intelligence Surveillance Act of 1978 and the Financial
Institutions Privacy Act of 1978.
The Foreign Intelligence Surveillance Act, for the first time, requires
a judicial warrant for all electronic eavesdropping, whether or not
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conducted for purposes of national security. The Financial Institutions
Privacy Act establishes the privacy rights of customers of banks and
credit companies in records which contain information about their
private affairs.
Of course, the efforts of the legislative committees have pot taken
place in a vacuum. Independent study commissions and agencies
within the executive branch have also been at work studying privacy
issues.
Specifically, the Privacy. Protection Study Commission, created
by act of Congress in 1974, issued a series of recommendations on
improved privacy protection in July 1976. Also, the National Com-
mission on Federal and State laws relating to wiretapping and-
electronic surveillance issued a report containing some privacy.-
recommendations in April of the same year.
After 2 years of study of the recommendations of these two com-
missions and other privacy issues the President, on April 2, conveyed
to the Congress a series of legislative proposals designed to expand
the privacy rights of Americans. Two of these proposals will require
the attention of this subcommittee. The Privacy of Medical Informa-
tion Act, introduced by Congressman Pryor, will be sequentially
referred to the Judiciary Committee following its consideration by
the Committees on Government Operations, Interstate and Foreign
Commerce, and Ways and Means.
However, H.R. 3486, the First Amendment Privacy Protection Act
of 1979, has been referred solely to the Committee on the Judiciary
and specifically to this subcommittee.
The need for H.R. 3486 arose out of the decision of the Supreme
Court last year in the case of Stanford Daily v. Zurcher. In that case
the Court held that newspapers and other news media are subject to
arbitrary search and seizure even when not themselves the target of
an investigation. In so ruling, the Court overturned the holdings of
the court of appeals and the district court that, where the object
of a search is a newspaper, first amendment interests restrain searches to
the rare circumstances where there is a clear showing that important
materials will be destroyed if a subpena or other advance request for
the information is employed.
Immediately following the decision in the Stanford Daily case, bills
to reverse the Court's ruling were introduced in the 95th Congress
by numerous Members from both sides of the aisle.
Although the Solicitor General initially argued as an amicus before
the Court in favor of the right to search journalists, the President
subsequently announced that he intended personally to study the
issue and ordered the Attorney General to advise him as to a legisla-
tive recommendation which would in part overturn the Court's
decision.
After consultation with constitutional scholars, civil libertarians,
law enforcement authorities, and other Cabinet members, the Attorney
General recommended to the President the bill before us today.
As we begin this initial day of hearings on the First Amendment
Privacy Protection Act, I am reminded of the special way in which
issues of this 'type link us to our Revolutionary Forefathers 200 years
ago. Even before the first Congress, the Massachusetts House of
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Representatives in 1768 issued a call to legislative action which is
relevant to us even in these hearings today, and I quote:
The liberty of the press is agreat bulwark of the liberty of the people: It is
therefore the incumbent duty of those who are constituted the guardians of the
people's right, to defend and maintain it.
The defense and maintenance of the liberty of the press is, indeed,
the subject of today's hearings.
I am very pleased to welcome our first witness, who has testified
before other committees and before us in the past, and whom we
greet back, the vice president of Columbia Broadcasting System,
William J. Small.
You may proceed as you wish.
TESTIMONY OF WILLIAM J. SMALL, VICE PRESIDENT,
WASHINGTON, CBS, INC.
Mr. SMALL. My name is William J. Small, and I am the CBS
Washington vice president.
Last year I appeared on behalf of CBS before the House Subcom-
mittee on Government Information and Individual Rights following
the Supreme Court's decision regarding search warrants in Zurcher v.
Stanford Daily.
In my testimony I expressed concern about police searches of inno-
cent third parties resulting from that decision. I suggested, however,
that the need to enact legislation barring police searches of newsrooms
was particularly compelling.
We at CBS are greatly encouraged that the administration has
responded with a specific legislative. proposal and that you, Chairman
Kastenmeier and Congressman Railsback, have introduced that
legislation in the House. We welcome the serious attention you are
giving to this important subject.
I should note that I have a personal and professional interest in the
subject of these hearings since I have spent virtually all of my career
as a working journalist and news executive. Before assuming my cur-
rent position, I was the CBS news executive responsible for all hard
-news coverage and all hard news broadcasts. Previously I served as
head of CBS News' Washington bureau.
In addition to my responsibilities at CBS News, I have served as
president of the Society of Professional Journalists, Sigma Delta Chi,
and of the Radio Television News Directors Association.
If you had asked me before May 30, 1978, whether, in light of all
my experience I thought that our Constitution permitted public
officials to invade a newsroom and rummage through its files, notes,
films, desks, and trash baskets at will, I would have quite confidently
offered an emphatic "no." I was wrong.
As we all know, the Supreme Court, in the Stanford Daily case,
reached a different conclusion. While news organizations may find
-subpenas for unpublished information distasteful, at least the sub-
pena procedure permits a news organization to state its case in court.
Stanford Daily, however, allows government officials to circumvent
this adversarial procedure. The result is harmful to the press and the
public it serves. -
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Because of the Supreme Court's refusal to recognize the fundamental
dangers to a free press that are involved in police searches of news-
rooms, I am here before you today to express CBS' support of H.R.
3486. This bill recognizes that the free flow of information contem-
plated by the first amendment can only occur in an environment well
insulated from governmental powers-not the least of which is the
'power to search a newsroom.
This is not to say that we do not have some reservations about
several provisions in the bill. For example, the bill allows searches of
newsrooms on the government's showing that a news organization may
possess national defense or certain classified information. One need not
look too far into recent history to support our concern that this pro-
vision could permit easy abuse by government officials.
As the late Justice Hugo Black stated in the Pentagon Papers case:
The word "security" is a broad, vague generality whose contours should not be
invoked to abrogate the fundamental law embodied in the First Amendment.
I also suggest that a potential for misapplication exists in another
of the bill's provisions-the one authorizing searches for certain non-
work product information upon a showing that the target news organi-
zation may destroy the materials if they are subpenaed.
We question the necessity of this provision given the fact that there
is no history of news organizations destroying materials in order to
frustrate subpenas.
I wish to emphasize that despite concerns such as the ones I have
outlined, we believe that, on balance, H.R. 3486 provides considerable
protection against the threat to press freedom created by the Stanford
Daily decision.
It must be recognized that the threat of the Supreme Court's
decision is not theoretical or abstract, it is real. It doesn't require a
great deal of scholarly research to conclude that public officials in the
past have abused governmental processes in attempts to suppress and
intimidate the press, nor does it take a great deal of foresight to con-
clude that government officials will try to abuse that power again.
In light of the Stanford Daily decision, is there any doubt that
sooner -or later some government official, if he or his political friends
suspect that they are being investigated by the press, will inevitably
take advantage of the opportunity to rummage through a newsroom
to see what can be found, including the identity of a whistleblower?
And while we know that a large news organization with high-
priced lawyers will not be easily intimidated, what about the thousands
of small local news outlets, often barely solvent? How can they be,
expected to resist officials intent on harassing and disrupting their
news operation through the use of easily obtained warrants?
More importantly, what about their sources? What about those
sources in State and Federal Government, including this Congress,
who regularly provide information to the press on assurance of
anonymity?
I believe that the effect on potential sources is clearly one of the
most devastating results of the Stanford Daily case.
The most frustrating aspect of the decision is that none of us will
ever know or be able to measure the irreparable injury this decision.
will undoubtedly cause to our democracy. We will rarely learn about
the potential source who might have revealed the next Watergate
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or a new cost overrun, but who chooses not to because of the pos-
sibility of exposure.
Throughout our history the press has exposed wrongdoing, revealed
corruption, and served as a check on the abuse of power by govern-
mental officials. But the full informative potential of the press will
never be realized in a society that permits the police to invade the
newsrooms and rummage at will through desks and files. I am quite
sure that this is now what the Founding Fathers intended when they
adopted the first amendment.
Thus, CBS strongly supports the prompt adoption of legislation
banning searches of newsrooms.
That concluded my statement, Mr. Chairman. I'd be happy to
answer any questions.
Mr. KASTENMEIER. Thank you very much, Mr. Small, for a con-
cise and compelling statement, to the point.
Of course you came today prepared to discuss the Stanford Daily
case, and even almost as we entertain this issue one has to see it" in
the context of other notorious cases which arise, against the back-
ground of libel cases.
How do you view the Stanford Daily case in the light of some of
these other cases? Is it of equal importance? Do you think they are
related? Is the press and the media assaulted on several fronts, or
how do you see this in the context of other press issues that have
arisen within the last couple of years, even some more recently?
Mr. SMALL. Mr. Chairman, the focus of Stanford Daily is compara-
tively narrow. I think there is no question that when viewed with
the Supreme Court decisions of the last several years we see a pattern
of, as many in the press view it, a hostile court. And time and again,
it seems to me, that the first amendment, if not abrogated, is cer-
tainly considered of secondary importance to other aspects of the
Bill of Rights and the Constitution, particularly those involving
the sixth amendment.
I think the importance of this case, as in the Branzburg case,
involving shields, protection of sources, is that in both of these the
Court specifically urged-or at least invited-the Congress to remedy
the situation.
So in Stanford Daily you have a court which says, in effect,
that the States or-not the States, but the Federal Government
can take an action to protect a newspaper against this kind of
search.
Mr. KASTENMEIER. You indicated a couple of reservations. One
was the need for national security, within the bill.
* * * or withholding of such materials or the information contained there-
in * * *
and then there's a parenthetical,
* * * but such a search or seizure may be conducted under the provisions of
this paragraph if the offense consists of the receipt, possession, or communication
of information relating to the national defense,. classified information, or restricted
data*** '
Are you suggesting that we modify that?
Mr. SMALL. Yes, sir. It is our feeling that what we've seen in the
history of the last 20 or 30 years has been many abuses of the classi-
fication privilege all through the Federal Government, but most
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particularly in the national security area, material coming oui, ui the
Defense Department.
One need not search far to find some of these abuses. A man
whose name I remember as Flowers, after retiring from the classi-
fication section of the Pentagon, said that 95 percent of the classified
material need. not have been classified at all.
What I'm fearful of is a loophole permitting those in Government
who have the classification privilege, who have these vague definitions
of national. security, simply to use them as a device to circumvent
the intent.
Mr. KASTENMEIER. Now, in terms of the focus which, as you say,
is fairly narrow, of this bill, how would you react to a broadening of,
let's say, to protect other third-party recordholders, such as doctors,,
lawyers, clergymen?
Mr. SMALL. I have no problem with that at all. I have addressed
myself here to the CBS position, which deals only with journalistic
aspects of the bill. That's a matter of special concern to us, obviously.
And also because the first amendment specifically sites religion and
the press as areas in which freedom should not be abridged by the
Congress.
I think it is obviously the privilege of this committee to consider
broadening it to third parties, and I believe some of the legislation
offered by some of your Members and some Members of the Senate
do just that.
Mr. KASTENMEIER. It's also been suggested that the bill conceivably
be expanded to protect first amendment privacy to include protection
of records of journalists in the possession of others, such as telephone
call records, postal records, records of mailing of packages, and so,
forth. These have been separately looked at as areas in the past, but
so long as we are looking at journalists or media, would you envision
some added protection in that regard?
Mr. SMALL. Well, I don't think it addresses itself to the Stanford'
Daily decision. There's.no question, well, you say telephone records.
The courts have ruled that the Government could invade, if you will,,
the telephone privacy of reporters and subpena records of whom they
called and when, in a case recently decided.
But the Stanford Daily, as I said earlier, is narrow in that it really
focuses on the simple question of, does a policeman have a right to
pick up that warrant as it goes out the door and come right into the
newsroom and start going through all your material.
We are not happy, for example, with the question of the prolifera-
tion of subpenas that have been directed at news organizations, but
at least the subpena process gives you the opportunity to say to the
policeman at the door, "Hold on, we want to go to court and argue
this case."
And, indeed, our experience at CBS, where we receive a good many
subpenas, is that that also gives us the opportunity to narrow the
focus of the subpena so that we don't go on a fishing expedition through
all the notes and all the files, but narrow in on the specific that it was,
intended to deal with.
Mr. KASTENMEIER. The bill itself, of course, does not call for criminal
penalties. Those cases are limited to civil liability on the part of any
public officials. Do you think that sort of penalty is strong enough?
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Mr. SMALL. I don't know. I was discussing this with a CBS lawyer,
and someone at the table asked, "What do you think a proper penalty
would be?" And his facetious response was, "Execution."
I don't think we advocate that. I would assume that the penalty in
this bill is adequate, and if it turns out not to be, if it turns out that
Government agencies are rather frivolous about just paying $1,000
fines of taxpayer money, again I'm sure that this Congress can revisit
the question and decide upon a proper penalty.
I think the important thing is to establish the basis in law. I'm
less concerned about the penalty not being adequate.
Mr. KASTENMEIER. A final question.
You were speaking here today on behalf of Columbia Broadcasting
System. Do you have any knowledge, from discussions with others
within the broadcasting community, of other points of view with
respect either to the bill before us, or this general approach provided
by this bill? Is it your view that the other networks, the other people
in the media, news media, others in journalism, support this approach?
Mr. SMALL. I can't speak for the other networks, nor would I, but
on the working reporter level-reporters, editors, people I have talked
to-a good deal of this goes back to last year, when the whole matter
was much fresher, and they expressed tremendous concern for the
potential of this bill on two aspects :
One, the actual invasion of their offices; two, and maybe even more
important, the chilling effect on the news sources.
And I found that nobody in the journalistic fraternity was sym-
pathetic with the decision that the Court reached. I believe you will
find that as your hearings continue, as is always the case, reporters
and editors don't speak as one. Some will like aspects of this bill, some
will not. They may have reservations other than the ones I've ex-
pressed, and they may have no reservations.
There's been no poll on this particular bill, as it's still rather fresh,
but I think it's safe to conclude that with rare exception-I know of
none-people in the news media are very troubled and concerned by
the decision and welcome any kind of legislative remedies.
Mr. KASTENMEIER. Thank you for your statement.
Mr. RAILSBACK. Mr. Small, I want to welcome you, also I think
the Chairman asked you most of the questions that I would have asked;
however, I am curious if there is any move afoot in the area of shield
legislation?
Mr. SMALL. Well, there's still a great deal of talk in the journalistic
community, but the shield problem is buried in this and other com-
mittees at the moment, and I suspect will move slowly unless we have
another dramatic example of the intrusion into the source question.
We have not had any quite as dramatic as those that came up in the
original decision.
I think in regard to shield legislation, one of the things interesting
about the bill that you're cosponsoring is that, whereas in shield legis-
lation one of the greatest difficulties we all have is defining who ought
to be covered. It's extremely difficult to have a pertinent definition of
a journalist without depriving others of first amendment rights. But
the approach of this bill, which is to deal with the work product
rather than trying to define a journalist, is a very healthy and fresh
approach which ought to be considered as you go on with shield
legislation.
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Mr. RAILSBACK. Yes, I'm inclined to agree with that.
I get the feeling that what once was a forward movement supported
by, at the time, a majority of the media, maybe now there has been
a withdrawal of that movement. I think that many of the legislators
are probably waiting to take a lead from the media, if there is any
unanimity, which of course there never was, on the shield legislation.
As you may recall, at the time I strongly supported a bill. I just
have the feeling that none of us are currently moving because we feel
the press may not want us to move. Is that kind of your feeling?
Mr. SMALL. I think there are differences of opinion more so there
than on this legislation, on this subject, because shield legislation,
after all, is broader than protection against search by warrant. And-
I suspect you would continue to have disagreement in the journalistic
society, including a number of editors who stubbornly insist that the
first amendment is adequate and we don't need further legislation.
Unfortunately, the Supreme Court of the United States ruled other-
wise, and did invite legislation. And I, for one, would welcome it.
I think a drop in enthusiasm by various journalistic groups is only
because nothing very much has happened either within the halls of
Congress or on the outside in terms of a dramatic case of a source
being exposed.
Mr. RAILSBACK. Yes, I agree.
Mr. SMALL. Although in the Farber case you did have exactly that
sort of thing, and at the time it created a great deal of interest.
Mr. RAILSBACK. Yes. I personally agreed with Justice Douglas,
who I believe, felt that the first amendment should afford protection
in that kind of a case, as I recall.
Mr. SMALL. I'm not sure I'm the best witness on that
Mr. RAILSBACK. Yes, there were differing views. But I think Justice
Douglas, as I recall did make it clear that he thought there should
have been first amendment protection.
But, in any event, I'm glad to see you, and I thank you very much
for your testimony.
Mr. KASTENMEIER. One last point. I was wondering whether is-
suance of warrants might be handled by guidelines from the Justice
Department, as the guidelines affecting cases involving newsmen's
privilege should more or less work out satisfactorily, notwithstanding
the fact that it's not law. This is something not immutable, which
changes from one administration to another, or even from day to day.
You know, if we were to rely on the guidelines for one case, why
should we not be able to rely on some sort of guidelines in terms of
search and seizure?
Mr. SMALL. Well, one, the Justice Department guidelines, of course,
affect only Federal Government employees. This legislation affects
both State and local, and that's what we are dealing with in the
Stanford Daily case.
Second., if the guidelines are loose and changeable with administra-
tions, it sort of leaves the sword hanging over a newsman's head.
Again, because the focus of this particular bill is comparatively
narrow, I think it's obviously much easier to deal with then the shield
legislation, for example, and I would. hate to see it delayed awaiting
expansion to other areas, or for action in.the shield area.
 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
Mr. KASTENMEIER. On behalf of the Committee, I want to express
our thanks and gratitude. to you for coming here today. Thank you
very much.
The Chair is pleased now to welcome the Assistant Attorney
General of the United States, Criminal Division, of the Justice
Department, Mr. Philip Heymann.
I want to assure you that because the bill we are dealing with,
H. R. 3486, is. introduced by myself and Mr. Railsback, does not
mean you are not free to fully criticize us with respect to it.
TESTIMONY OF PHILIP HEYMANN, ASSISTANT ATTORNEY GEN-
ERAL, CRIMINAL DIVISION; ACCOMPANIED BY ROGER PAULEY,
OFFICE OF LEGISLATION, CRIMINAL DIVISION
Mr. HEYMANN. Mr. Chairman, I would like to introduce Roger
Pauley, who is head of the Office of Legislation in the Criminal
Division, and I know you've both met him.
Mr. KASTENMEIER. Indeed we have, and Mr. Pauley you are always
most welcome.
Mr. HEYMANN. Mr. Chairman, if my statement can be introduced
in whole, I will substantially abridge the presentation of it so that we
can move quickly to questions and answers and discussion of the most
difficult matters.
Mr. KASTENMEIER. Without objection, the statement in its
entirety will be received for the record.
[The full statement follows:]
STATEMENT OF PHILIP HEYMANN, ASSISTANT ATTORNEY GENERAL, CRIMINAL
DIVISION
I am pleased to appear before this subcommittee today to discuss H.R. 3486,
an Administration bill which you, Mr. Chairman, introduced earlier this month
The bill, entitled the "First Amendment Privacy Protection Act of 1979," would,
protect against unwarranted ,third party searches not only of the press, but of.
others who are involved in First Amendment activities through which information;
and ideas reach the public.
I have been intimately involved in, the development of this legislation since
June of 1978, when President Carter directed the Justice Department to conduct,
an.. exhaustive study of the issues. which. were raised by the Supreme Court's
decision in Zurcher v. Stanford Daily,' and.to assess the possibility of generating.
a legislative solution to the problems which arose out of the Court's decision. As
I am sure you are aware, the Court held in that case that neither the First nor
the Fourth Amendment stood as a bar,to a search:o_f a newsroom for evidence
of a crime.
The concern of the President which was shared by many in the Congress and
the.nation as a whole was that third party searches of the press, such as the one ,
which was upheld by the Court in Stanford Daily, could have the effect of hamper-
ing the ability of those involved in First Amendment activities to gather and
disseminate information. Intrusions into the files of newspapers, authors and
academicians are particularly harmful because of the important role that these
institutions and individuals play in informing the public of the increasingly
complex events which affect the quality of our lives and in preserving the flow
of divergent ideas and opinions which are the cornerstones of a free society. The
risk that the threat of government searches may lessen the willingness of these
persons to investigate sensitive or controversial issues and hamper their ability
to obtain information from confidential sources is one we can ill afford to take.
 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
In response to the President's directive, Judge Bell formed a task force whose
function it was to examine the issues raised by Stanford Daily, and to draw up a
comprehensive set of options for solving the problems which arose from the
decision. This option paper, together with my recommendation, was sent to the
Deputy Attorney General and then to the Attorney General, who with some minor
modifications accepted the recommendations and transmitted them to the Presi-
dent. In December of last year, the President announced the Administration
position incorporating those recommendations. The bill before you today embodies
that Administration position.
In transforming the Administration proposal into formal legislation, elements
of the proposal were refined and amplified. This process included consultation
with other departments and agencies of the federal government with divergent
interests. The insights which these discussions provided were helpful in the formu-
lation of the bill. At the same time, however, they underscored the complexity of
the issues addressed by this legislation. The end result of the many months devoted
to developing this bill is, we are convinced, a legislative solution which assures the
preservation of First Amendment values in a manner that will not jeopardize
the effectiveness of our criminal justice system.
The language of the prohibitions imposed by this legislation is general and
inevitably imprecise, reflecting our intention that its restriction on the search
authority of federal, state and local government officers have a broad sweep. In
the long run, considering the importance of the values which are to be protected
by this legislation, we felt it was better to assure adequate protection through the
use of broad provisions than to opt for narrow and restrictive language. In an
effort to delineate the intended reach of this legislation, I will use a number of
examples to illustrate the application of the proposed provisions. I hope that they
will resolve some of the questions you. may have regarding the bill.
In beginning my explanation of the specific provisions of this legislation, I would
like first to address the questions of exactly what kinds of materials are protected
from search and what sorts of 'searches are covered by the bill. I will then turn to
an equally important issue, the distinction between work product and non-work
product materials and the differing levels of protection these two classes of
materials are afforded. Finally, I will discuss the remedies provided in the bill.
This legislation is entitled the "First Amendment Privacy Protection Act"
because it provides broad protections against searches for materials which are
obtained or prepared in connection with First Amendment activities. The bill
describes the protected materials as those which are "possessed by a person in
connection with a purpose to disseminate to the public a newspaper, book, broad-
cast, or other similar form of public communication". Thus, the protection pro-
vided by this legislation extends not only to the institutional press, but to aca-
demicians, authors, filmmakers, and free lance writers and photographers. While
we considered the option of a press-only bill, this format was rejected partially
because of the extreme difficulties of arriving at a workable definition of the press,
but more importantly because the First Amendment pursuits of others who are
not members of the press establishment are equally as important and equally
as susceptible to the chilling effect of governmental searches as are those of mem-
bers of the news media.
The bill focuses its search limitations on "documentary materials." This term
is given an expansive definition in the final section of the bill in order to cover all
"materials upon which information is recorded." Specifically included within the
definition of "documentary materials" are written or printed materials, films,
tape recordings, and interview files.
Documentary materials were selected for, protection for three reasons. First, it
is searches for these sorts of materials that pose a significant danger to First
Amendment activities. Such searches often necessitate examination of numerous
irrelevant papers and files in order to locate those materials which pertain to the
investigation in question. The import or nature of documentary materials, un-
like nondocumentary items such as weapons or narcotics, is not apparent at first
glance, but instead requires examination of their contents. While the scope of a
search for nondocumentary materials may be effectively limited so as to exclude
scrutiny of papers and files, searches for documentary materials are not suscepti-
ble to such limitations and, as a result, are likely to entail rummaging through
files containing sensitive and confidential information which bears no relation to
the criminal activity being investigated.
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A second reason for restricting the application of this bill to searches- for docu-
mentary materials is the fact that the purpose of such searches is generally to gain
access to the information contained in these materials. To the extent that this
information is generated through the investigative efforts of a reporter or re-
searcher, it may be duplicated by a similar effort on the part of law enforcement
officers. On the other hand, searches for non-documentary materials, such as
contraband or property of the defendant which may bear incriminating finger-
-prints or other physical evidence, arise out of a need to obtain these unique items
which cannot be duplicated through further investigative effort. These non-
documentary materials should remain as permissible objects of lawful search and
:seizure.
Third, the bill's focus on documentary materials has enabled us to narrow the
exceptions employed in the bill and thereby provide significantly greater protec-
tion against searches for materials critical to the First Amendment activity of
.gathering and disseminating information to the public.
Of course, not all documentary materials held by a reporter or author bear a
.relation to his First Amendment activities. Obviously excluded from the scope
of the statute would be, among others, the business records of newspapers or
authors or documents indicating ownership of property. This legislation protects
only those materials which are held "in connection with a purpose to disseminate .. .
a form of public communication". This phrase, however, is intended to have a
broad meaning. It reaches not only those materials which have been or are in-
tended to be published or which contain information which has or will be incorpo-
rated in a form of public communication, but also those materials which were
gathered and prepared in anticipation of publication although that effort was
later abandoned. Thus, a reporter's notes and drafts of an article which his editor
later determines is unsuitable for publication would continue to be protected, as
-would an author's background research notes which are never incorporated into
the final published product.
Materials which are held for purposes other than the dissemination of a form
of public communication are not protected from search. Thus notes held by a
corporate officer which were made in preparing a confidential memo that is later
-made public in an expose of corporate fraud would not be protected since the
.corporate officer did not intend that the contents of the report be published. Simi-
larly, business records or reports which are required to be filed with the govern-
ment, and which as a result are available for public examination, would not come
within the scope of the provisions of this legislation because they were prepared
for the purpose of meeting the reporting requirements, not for the purpose of
communicating with the public. Although public access to such documents may
be achieved, for example, through a request under the Freedom of Information
Act, this does not transform those documents into a form of communication in-
tended for the public.
Determining what constitutes a form of public communication was one of the
more difficult problems which arose in developing this legislation. Obviously radio
and television broadcasts, and most newspapers, magazines, and books are the
clearest examples of forms of public communication. The internal memoranda of
a corporation or its communications with its employees, on the other hand, would
not be forms of public communication. -
The fact that a small town newspaper or an esoteric magazine has a small
circulation does not mean that it is not a form of public communication. I believe
that in borderline cases the appropriate test for ascertaining whether the communi-
cation in question is public or not is whether it would be available to persons in
the general public upon simple request. Thus, a professional journal or a union
newspaper which met this test would qualify as a form of public communication,
while a book that was privately published for distribution only to the friends and
relatives of the author would not. Other forms of public communication might
include political campaign materials or a press conference.
The bill provides comprehensive protections against searches by federal, state,
and local officials in connection with the investigation or prosecution of any crim-
inal offense. By covering law enforcement-related searches at all governmental
levels, the bill would reach all of the previous situations in which searches of the
media have been conducted. - -
Searches by private citizens are outside the scope of this legislation, just as they
are outside the strictures of the Fourth Amendment. In addition, an assortment
 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
of noncriminal searches are not addressed in this bill. Unaffected by this legisla-
tion would be searches and seizures which arise out of civil matters such as the
seizure of assets to satisfy the payment of a debt or taxes owed to a government
unit and routine inspections by government agencies such as examinations of
records of regulated businesses or authorized monitoring of the purity of food
and drugs. These types of searches are unlikely to involve the kinds of documen-
tary materials protected by the bill. Searches conducted in the course of foreign
intelligence gathering activities are also outside the ambit of the legislation. Such
searches, which are exclusively federal in nature, are not only infrequent but also
must be approved at the highest levels of the Executive branch.
While routine border searches for the purpose of facilitating the collection of
duties and taxes imposed on property imported into the United States and pre-
venting the introduction of contraband into the United States would not, in our
view, constitute searches conducted "in connection with the investigation or pros-
ecution of crime", and as such would be outside the scope of this legislation, it
seemed appropriate in this instance to clarify that these searches at the borders
and international points of entry are not subject to the limitations of the bill.
Since members of the press and authors frequently travel internationally, we and
the Treasury Department were concerned that they might misunderstand the
application of this legislation and' protest routine searches of -their luggage and
other property they were bringing into the United States. Therefore, routine
border searches which are necessary to the enforcement of our customs laws are
specifically exempted in section 3 of the bill from the restrictionsof this legislation.
THE DISTINCTION BETWEEN WORK PRODUCT AND NON-WORK PRODUCT
DOCUMENTARY MATERIALS
Central to understanding the operation of this bill is the distinction between
documentary materials which constitute work product. and those which are classi-
fied as non-work product; the former category of materials is afforded the pro-
tection of a general no-search rule, while the latter can be searched for in a broader
range of cases, though still subject to a general subpoena-first requirement.
The term "work-product" encompasses those materials whose very creation
arises out of a desire to communicate to the, public. What triggers the work-prod-
uct no-search rule is the fact that the materials which are sought were created
by or for a person in connection with his plans, or the plans of the person creating the
materials, to communicate to the public. Thus, the notes and drafts of a reporter
would be work product, as would be the photographs which were the subject of
the search in the Stanford Daily case.. Furthermore, a report (revealing government
corruption prepared by a "whistleblower" and sent to a newspaper in hopes that
it will be published, would constitute work product even though the report was not
solicited by the newspaper.
If plans to disseminate. information to the public are formed at a time after the
creation of the materials, the materials would not constitute work product. If,
for example, a citizen is taking photographs when a crime suddenly occurs and
later decides to sell the photographs for publication, his photographs would not
qualify as work product since they were was not created out of any desire that
they be published in a form of public communication. However, similar photo-
graphs taken by a person on the staff of a newspaper assigned to cover the event
at which the crime took place would meet the work product definition.
Contraband and the fruits and instrumentalities of a crime are excluded from
the definition of work product. While, it, would be rare that such evidence would
come within the work product definition since such' materials are usually not
created for the purpose of communicating with the public, one example of such
evidence would be a ransom note-an instrumentality of the crime-which was
sent .by a kidnapper to a newspaper to broadcast his demands.
Since contraband and the fruits and instrumentalities of a crime, unlike work
product materials generally, are intimately related to the commission of a crime
and their production at trial .is often necessary to securing convictions, these
materials should not qualify for the stringent protections that the no-search rule
affords to work product. If, however, such evidence is in documentary form, the
protection of the non-work product provisions of the bill would be applicable.
In other words, all documentary materials which do not constitute work product
but which are nonetheless held in connection with plans to disseminate a form of
public communication are covered by the bill.
 Approved For Release 2007/05/23: CIA-RDP85-000038000300040017-9
13
Searches for materials which fall within the definition of work product are-
prohibited by this legislation with only two limited exceptions. The first of these
two exceptions, which I refer to as the "suspect exception", allows a search for
work product materials if there is probable cause to believe that the person pos-
sessing the materials has committed or is committing the crime for which the-
materials are sought. While this provision is cast in the form of an exception,.
it really codifies a core principle of this bill, which is to protect from search only
those persons involved in First Amendment activities who are themselves not
implicated in the crime under investigation, and not to shield those who par-
ticipate in crime.
The suspect exception has been carefully formulated to insure that it does not
provide a means for circumventing the no-search rule. The standard of proof
which must be met by officers seeking a search warrant under this exception is
the same as that which would be required to obtain a warrant for the arrest of
the person possessing the materials. A mere suspicion or reason to believe that
the possessor is implicated in the crime is not a sufficient basis for invoking this,
exception. As you know, proof of the complicity of the possessor of materials is
not presently a prerequisite to obtaining a search warrant.
One further problem which arose in our consideration of the suspect exception
was the possibility that a reporter who had received, for example, a stolen cor-
porate report which discussed a defective product, knowing the report to be
stolen, might be guilty of a crime of receipt or possession of stolen property
and thus liable to search and seizure of the report under the suspect exception.
We believed that it would unduly broaden the -suspect exception to use the re-
porter's crime of simple "possession" or "receipt" of the materials (or the similar
secondary crimes of "withholding" or "communicating" the materials) as a
vehicle for invoking the exception when the reporter himself had not participated
in the commission of the crimes through which the materials were obtained.
Thus the bill makes clear that crime of receipt or possession of materials generally
may not be invoked to trigger the suspect exception.
The suspect exception is retained, however, in cases where the receipt, pos-
session, or communication of materials constitutes an offense under the existing
language espionage laws or related statutes concerning restricted data. Because
the gravity of the offenses involved, the legal authority to search is retained where
there is probable cause to believe that a violation of these federal laws has been
committed. By relying on the present laws in this area rather than attempting
to devise a new formulation, we have sought to avoid unnecessarily burdening
the First Amendment search protection proposal with complex and difficult
espionage issues. It is important to remember here that these offenses involve ex-
clusively federal matters and that there is no past history of federal searches of
the media based on these statutes or any other federal laws.
The second circumstance in which a search for work product materials is per-
mitted is that in which there is "reason to believe" that the immediate seizure of
the materials is necessary to prevent the death of or serious bodily injury to a
human being. In these instances, the preservation of human life must be our
paramount concern.
I believe that when human life is in peril, requiring that the proof of this danger
meet the more stringent standard of probable cause is unjustifiable. These are
exigent situations which do not allow extensive investigation prior to the seizure
of materials that are reasonably believed to contain information that may relieve
the peril by indicating the location of hostages or the identify of the criminals
who threaten human life. Therefore, the "reason to believe" standard, which is
higher than mere suspicion but which is considerably less demanding than "prob-
able cause," is to be employed in invoking this life-in-danger exception.
Unless one of these two exceptions applies, law enforcement officers may not
conduct a search for work product materials which are being held in connection
with the dissemination of a form of public communication. Instead, these ma-
terials must be sought through the use of an informal request or a subpoena
duces tecum. In the face of a refusal to comply with a subpoena, the sanction of
contempt may be imposed by the court. But even if the penalties of civil or crim-
inal contempt do not result in production of the materials, a search for. these
work product materials is nonetheless prohibited.
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PROHIBITIONS ON SEARCHES FOR NONWORK PRODUCT DOCUMENTARY MATERIALS
Searches for non-work product documentary materials may be conducted in a
broader range of circumstances than may searches for work product. In the case
of these materials, the bill provides four exceptions to the general prohibition
against search. The first two of these are identical to the suspect and life-in-danger
exceptions which apply to work product.
In addition, a search may be permitted (if otherwise lawful) under a third
exception if there is reason to believe that the giving of notice pursuant to a
subpoena duces tecum would result in the destruction, alternation or conceal-
ment of the materials being sought. Where non-work product materials are in-
volved, the need to obtain and preserve evidence necessary to the successful
investigation and prosecution of crime outweighs the need to avoid the disruptive
effect of government searches where there is a demonstrated likelihood of destruc-
tion or concealment. This third exception might come into play, for example,
where a reporter had in the past taken steps to obstruct an investigation or had
announced that he would destroy the materials rather than turn them over to
the police. In some instances, the fact of an extremely close, sympathetic rela-
tionship between the possessor of the materials and the suspect, or of a relation-
ship in which the possessor was clearly dominated by the suspect, might suffice
as a basis for invoking this exception. Similarly, a showing that the suspect had
free access to the materials could constitute grounds for obtaining a warrant
under this exception.
The fourth and final exception under which a search for non-work product may
be conducted is that where non-compliance with a subpoena duces tecum, after
a trial court has ordered production of the documents, threatens the interests of
justice or where compliance is not forthcoming after all appeals have been ex-
hausted. It is important to hear in mind that in no case will a search be permis-
sible under this exception until such time as a trial court order directing compliance
with the subpoena has failed to produce the materials sought. Even then, the
possessor of the materials will be able to exhaust his appellate remedies before a
search warrant may be obtained unless the government establishes that there is
reason to believe that the delay in an investigation or trial occasioned by further
proceedings concerning the subpoena would threaten the interests of justice. In
the event that a search warrant is sought prior to the exhaustion of appellate
remedies under this exception, the possessor of the materials must be given an
adequate opportunity to submit an affidavit setting out the basis for any conten-
tion that the materials sought are not subject to seizure. Such contentions might
include an assertion that there is not sufficient evidence to establish probable
cause, or that the materials are in fact work product and thus not obtainable by
search and seizure.
There are a number of situations in which the government might be successful
in demonstrating that the delay attendant in awaiting final resolution of the appeal
.process, would be likely to threaten the interests of justice. The most clearcut
examples in which a search warrant might be obtained under this final exception
prior to the exhaustion of appellate remedies would be difficulties in meeting the
time constraints imposed by statutes of limitation, the Speedy Trial Act, or the
expiration of grand juries. Other examples are situations in which the success
of an investigation or prosecution is likely to he jeopardized by the interruption
occasioned by a lengthy appeal. Often the effectiveness of the criminal justice
system hinges on swift action. Awaiting resolution of an appeal that may take
months or even years may be intolerable from a law enforcement standpoint,
e.g., in investigating such crimes as highly mobile drug trafficking or ongoing
crimes which endanger the health and safety of the public, or where the ability
to obtain a conviction through eyewitness identification diminishes rapidly with
the passage of time.
The provisions of this bill are to be enforced through a civil cause of action
for damages. This remedy will not only provide compensation to those persons
who have been subjected to searches in violation of the bill, but will also serve
as an effective means of deterring such violations.
The bill provides that.these suits may be maintained by those persons who are
"aggrieved" by the unlawful search in question. Generally, these would be the
persons whose homes or offices are entered in the course of the search or who
own the documents seized. Current law concerning which persons have standing
to challenge an unlawful search and seizure under the Fourth Amendment will
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 Approved For Release 2007/05/23: CIA-RDP85-00003ROO0300040017-9
serve as the guide for determining which persons are appropriate plaintiffs in suits
brought to redress violations of this legislation.
Once a violation has been established, the plaintiff would be able to recover
actual damages, but in no event would he recover less than liquidated damages of a
thousand dollars. A provision for liquidated damages is important for it may be
difficult to establish any significant amount of actual damages. In addition, a
:successful plaintiff may recover punitive damages, if warranted, and the court may,
_in its discretion, award litigation costs and attorneys fees.
If the violation complained of has been committed by a federal or local officer
.acting within the scope or under color of his employment, the government em-
. ploying that officer will be exclusively liabel for that violation. Because of the
Eleventh Amendment's limitations on the imposition of liablilty on the states for
the payment of money damages, officers employed directly by a state will remain
personally liable for their violations until such time as the state may pass legisla-
tion substituting itself as the sole plaintiff in cases brought under the provisions
of this bill.
An important feature of the proposed civil damages scheme is that when a
government is liable for a violation-and this will be the case in the vast majority
of situations-it is precluded from asserting as a defense, normally available
under the common law, the good faith of the officer or his immunity from suit.
A bar on the use of these defenses will significantly increase the likelihood that a
plaintiff will be successful in his suit against the government. There is, however,
no such restriction on the defenses that may be raised in those comparatively
rare instances in which an individual officer is properly made the defendant in
the action.
Imposing exclusive liability on the employing government unit in most cases
and prohibiting the government defendant from availing itself of the defenses of
the officer's immunity and his good faith, is, I believe, a sound policy that we have
borrowed from the Administration's proposed amendments to the Federal Tort
Claims Act.
There are several advantages to exclusive government liability for the mis-
conduct of its employees. It provides the plaintiff with a defendant who is capable
of satisfying a substantial money judgment, and thus affords an adequate means
of compensating the injured party. In addition, imposing liability on the employing
-government will encourage it to take measures to educate its officers about the
restrictions imposed by the bill and to discipline officers in appropriate cases. In
this way, the deterrent goal of the remedy may be better effected.
Individual officers should be freed from civil liability, because the fear of such
liability, particularly when a large sum of liquidated damages is provided, may
prompt the officers to excercise unwarranted caution in the performance of their
.duties and thereby hamper their effectiveness in investigating and preventing
crime. However, freeing officers from civil liability does not mean that officers
will not be held responsible for their acts. This bill requires that an administrative
inquiry be commenced if a federal officer is found to have committed a violation
of its provisions and calls for the imposition of disciplinary measures if the con-
-duct of the officer merits such action. While such procedures are not imposed on
states and local governments, I hope that they will adopt appropriate adminis-
trative mechanisms to respond to willful violations.
An issue which is not addressed in the language of the proposal and which we
take the opportunity to clarify in these hearings is the intended inapplicability of
the "exclusionary rule" to evidence obtained as a consequence of a violation of
the provisions of the legislation. The existing federal case law on whether the
exclusionary rule attaches to noncompliance with a statute regulating searches
and seizures, as opposed to a violation of the Fourth Amendment, is not settled.2
2 Compare United 'States v. Caceres, 42 U.S.L.W. 4349 (April 2, 1979). The Supreme
Court has applied the exclusionary rule in a series of decisions involving violations of 18
U.S.C. 3109, which generally requires a knock and announcement of purpose and identity
by federal law enforcement agency before they may "break open" a door or window of a
house to effect entry pursuant to a search warrant. See Sabbath v. United States, 391 U.S.
585 (1968) ; Miller v. United States, 357 U.S. 301 (1958) ; see also Wong Sun v. United
States, 371 U.S. 471 (1963) ; Tier v. California, 374 U.S. 23 (1963). But these decisions
are not dispositive for two reasons. First, the issue of the applicability of the exclusionary
rule in these cases was. not.disputed or discussed but rather assumed ; and second, that
statute, unlike the proposed legislation here, is likely a codification of requirements rooted
in the Fourth Amendment itself-see Miller v. United States, supra, 357 U.S. at 313-and
thus does not truly pose the question.
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16
In our view, the exclusionary rule should not be applied to the proposed!
statute, which seeks to protect privacy interests of non-constitutional dimension_
The uniquely generous civil damages remedies afforded by the bill provide an
ample deterrent to violations. There is, therefore, no reason to penalize society-
through the costly additional sanction of excluding from a criminal trial reliable-
and probative evidence obtained as a result of violations which will be, I believe;,
in nearly all cases inadvertent and unintentional.
The breadth and flexibility of this bill are two of its primary advantages; yet-
in order to achieve these qualities, the language of the legislation is necessarily-
general and at times imprecise. We recognize that as a result it may be difficult
in some circumstances for law enforcement officers to determine with precision.
the applicability of the limitations on search and seizure imposed by this bill.
Where such doubts arise prior to the obtaining of a warrant, officers should, if'
possible, attempt to obtain additional information about the nature of the mate-
rials being sought and the activities of the persons possessing them. In these-
cases, the very imprecision of the terms employed in the bill will have the salutary
effect of causing a more thorough investigation before a warrant is secured.
However, if in the course of executing a lawful search warrant, some question
arises in the mind of the officer that the materials sought might be covered by
this legislation-e.g., the person on the scene claims that the materials are being
held in connection with his plans to publish a book or article-the officer should'
not abandon the search simply because he is not certain that the materials are-
not protected. If it is his good faith judgment that the search is probably permis-
sible, he should proceed with the execution of the warrant.
In the event that it later results that the materials were in fact covered by the-
legislation and the officer was incorrect in his assessment, the federal or local:.
government will, upon being sued, compensate the person injured by the search.
State officers who have proceeded in the execution of a search reasonably believing-
their conduct to be lawful need not fear liability, for, just as is true today in suits.
arising under the'Fourth Amendment, they may raise a good faith defense to
defeat the claim for damages.
A bill such as this which has the breadth to protect the variety of materials held
in connection with First Amendment activities necessarily contains elements of
uncertainty and it must be recognized that good faith violations will occur despite-
the best efforts of law enforcement officers to comply. The government employing
these officers will have to bear the financial burden of such occurrences, but the-
fear of such potential liability-which we do not anticipate will be extensive-
should not prevent these law enforcement agencies from encouraging their officers
to act according to their best judgement of the situation and not refrain from
searching for or seizing documentary materials merely because questions about the
application of this legislation are encountered in the course of the search.
The effect of this legislation will be to severely limit, and in many cases ab-
solutely prohibit, searches by federal, state, and local law enforcement officers.
for documentary materials which are held in connection with a broad range of
First Amendment activities.
A policy of restraint similar to that embodied in this legislation has for some
time governed federal access to materials held by members of the-news media. As
a result, there is no record of a search warrant even having been executed by a
federal officer against a press organization. Furthermore, for several years, re-
quests by Justice Department officials for the issuance of subpoenas directed at
members of the press have been subject to restrictive regulation.3 Adherence to.
this policy has had no demonstrated detrimental effect on our law enforcement
efforts, and I am confident that the, experience of state and local law enforcement
agencies would be the same if this legislation were enacted.
8 28 C.F.R. ? 50.10. This regulation states, among other things, that subpoenas directed'
at members of the press are to be sought only after an attempt has been made to obtain
the infdrmation front non-media sources. that such subpoenas be limited in most cases to
the purpose of verifying the accuracy of published information, and that these subpoenas-
avoid requiring production of a large volume of unpublished materials. In addition,
approval of the Attorney General must be obtained in order to request issuance of suchr
subpoenas.,
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In sum, I believe that H.R. 3486 strikes an appropriate balance between the
iinterests of law enforcement and the need to protect First Amendment values.
Its restrictions on third party searches of persons involved in First Amendment
activities, while significantly circumscribing existing authority to conduct searches,
will not unduly compromise our ability to investigate and prosecute crime. Yet, at
the same time, the bill's stringent limitations on governmental search authority
-will provide an effective means of protecting the privacy and independence of
those persons whose vital work it is to inform and enlighten the public. .
Mr. HEYMANN. I am pleased to appear before this subcommittee
today to discuss H.R. 3486, an administration bill which you, Mr.
Chairman, and Mr. Railsback, both introduced earlier this month.
The bill, entitled the "First Amendment Privacy Protection Act of
'1979," would protect against unwarranted third party searches not
.only of the press, but of others who are involved in first amendment
activities through which information and ideas reach the public.
The legislation is entitled the "First Amendment Privacy Protection
Act" because it provides broad protections against searches for ma-
terials which are obtained or prepared in connection with first amend-
ment activities. The bill describes the protected materials as those
-which are "possessed by a person in connection with a purpose to dis-
seminate to the public a newspaper, book, broadcast, or other similar
form of public communication."
Thus, as Mr. Small just noted, the protection provided by this
legislation extends not only to the institutional press, a body. that's
,difficult to define and has caused trouble in the legislative process
before, but to academicians, authors, filmmakers, and freelance writers
and photographers.
We considered the option of a press-only bill but rejected this format
partially because of the extreme difficulties of arriving at a workable
-definition of the press, but more importantly because we thought it
-was appropriate to have a first amendment bill, and not a press bill..
The first amendment pursuits of others who are not members of the
press establishment are equally as important and equally as suscep-
tible to the chilling effect of governmental searches as are those of
-members of the news media, and the news media is the first to recog-
nize this frequently.
The bill focuses its search limitations on "documentary materials."
This term is given a very expansive definition in the final section of the
bill in order to cover all "materials upon which information is re-
-corded." Specifically included within the definition of "documentary
-materials" are written or printed materials, films, tape recordings,
and interview files. In other words, the coverage is broad as to people,
and broad as to anything written, taped, or photographed, that they
may have for purposes of publication.
Documentary materials, rather than anything else, were, selected
for protection for three reasons:
First, it is the search of documents that poses the most significant
danger to first amendment activities. Such searches often necessitate
-examination of numerous irrelevant papers and files in order to locate
-those materials which pertain to the investigation in question.
Now, all that means is that if we are looking for a particular docu-
ment we have to read every other document that we find on the way,
to see if we've got the right one or not. The meaning or nature of
documentary materials, unlike nondocumentary items such as
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weapons or narcotics, is not apparent at first glance, but instead"
requires examination of their contents.
While the scope of a search for nondocumentary materials may be
effectively limited so as to exclude scrutiny of papers and files, searches
for documentary materials are not susceptible to such limitations and
require going through all papers and files, and necessarily entail
rummaging through sensitive and confidential information.
A second reason why the bill is limited to documentary materials
is the fact that the purpose of such searches is generally to gain access
to the information contained in these materials. To the extent that
this information is generated through the investigative efforts of-
a reporter or researcher, it may be duplicated by a similar effort
on the part of law enforcement officers.
What we're looking for is information. We can frequently get it
by ourselves, without piggy-backing on the press. On the other-
hand, searches for nondocumentary materials such as contraband or
property of the defendant which may bear incriminating fingerprints,
arise out of a need to obtain those unique items which cannot be.
duplicated through further investigative efforts. This is something
unique, physical, concrete. If it is something that is not an informa-
tion-bearing document, we feel we have to be as entitled to get it as.
the press.
Third, and perhaps most important, the bill's focus on documentary
materials is really the -secret of enabling us to narrow the exceptions.
employed in the bill and broaden the protection for anybody interested
in' providing information to the public. By narrowing the coverage-
to documentary materials held for publication, we are able to do the
first two things I mentioned, and broadly include everybody in the
United States and not just the press, and have very few and narrow
exceptions.
I think I will pass over some of the categories of what are and are-
not documentary materials, and go to the question of what is a
public communication.
The statute depends on the intention of the person searched to.
hold or to prepare materials for publication, and its jurisdictional
base is Federal power and interstate commerce. Obviously, radio and'
television broadcasts, and most newspapers, magazines and books
are the clearest forms of public communication. If someone is holding.
materials covered for use in a broadcast, in a book, and most news--
papers, it's plainly covered.
On the other hand, the internal memorandum of a corporation or-
its communications with its employees would not be forms of public.
communication.
For a communication to be covered by the bill, it would have to be-
at least available to anyone in the public who wanted it. The fact
that a small town newspaper or an esoteric magazine has a small cir--
culation does not mean it would not be covered by the bill. It would
still be a form of public communication. I believe that in borderline-
cases the appropriate test for ascertaining whether the communica-
tion in question is public or not is whether it would be available to~
persons in the general public upon simple request.
Mr.-KASTENMEIER. Is a public speech a public communication?
Mr. HEYMANN. A public speech would be a public communication..
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Mr. KASTENMEIER. In other words, the notes of the speaker and.
other materials relied upon by the speaker would be
Mr. HEYMANN. Yes, there might be, in some cases, Mr. Chairman,
a question as to whether it was covered by the bill because of the
requirement of an effect on interstate commerce. But certainly if it
were a campaign speech of a Presidential candidate, nothing could
be plainer that it would be a public communication.
Mr. KASTENMEIER. I was thinking of, to test the proposition, say
we're talking about a protester in the streets, or somebody where we.
might get into other questions as to whether such a person might
otherwise be in the process of violation.
Mr. HEYMANN. Yes. There's no reason why a public speech under
appropriate circumstances of likely impact on interstate commerce=
wouldn't be covered. I guess what I've said so far is that the bill that
has been introduced by the Chairman and Mr. Railsback is one that
broadly covers-it is a first amendment bill, not a press bill-everyone-
exercising his first amendment rights.
The secret of its capacity to be so broad, and yet, I think, to be
workable, is that it covers only documentary materials and it protects.
against search and seizure of only those materials which are held for
publication in interstate commerce. And we read those terms very-
broadly, publication in interstate commerce.
To just take one or two steps into greater refinement, the bill
makes a distinction between what was specially prepared for publica--
tion and other documents that were prepared for other purposes but
turned over to the press. What was specially prepared for publication,
either by a whistleblower or a private citizen, or a reporter, enjoys.
the protection of an absolute no-search rule, subject only to two-
I shouldn't have said "absolute"-subject to two narrow exceptions:,
for suspects, and for life endangering situations.
Whether it was prepared for the Assistant Attorney General in
charge of the criminal division or the vice president of General Motors,,
or someone else, if documents prepared for other purposes were then
turned over to the press, they enjoy a broad subpena first protection..
The difference there, the reason we're able to give an almost ab-
solute protection to one and not the other, is, again, that the documents,
that are prepared for other purposes may be unique items; they may
be the only source of evidence. What is prepared for the press is, in a
sense, the creation of the press; giving up our right to seize it in a
search and seizure is simply giving up our right to piggy-back there.
When we're dealing with other documents, to give up our right to
search completely would be to give up control of the document pro--
duced for other purposes to whoever got it first.
There is for all documents a broad subpena first rule, with four ex-
ceptions: suspects, danger to life or of severe physical injury, a.
likelihood that the documents would be destroyed or concealed if a .
subpena was used, and finally, an exception in a situation where a
court has ordered production of a document, it has not been produced,
the matter is on appeal, and yet the Speedy Trial Act or something:
else requires the Government to have it before the course of appeal.
could be carried out.
. Even in that last category of exceptions, there is an additional
protection for a person holding material for publication, and that is.
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 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
the right to participation in an adversary way at the search warrant
:stage.
We went out of our way, Mr. Chairman, to try to see to it that the
suspect exception didn't come to swallow the broad rule. The basic
principle is you cannot search at all for the work product of somebody
preparing materials for publication. We were worried that under State
law or under Federal law receipt of stolen information might become a
crime, or receipt of stolen documents under the nonwork product docu-
ments might become a crime, that would make every newspaper and
,every radio or television station, a suspect. Therefore, we wrote into
our proposed bill a provision which said that receipt or possession of
-documents cannot itself be the crime that makes the holder of the docu-
ments a suspect and, therefore, searchable.
To that exception we added one limitation, relating to the espionage
.laws, that we will discuss, I take it, in the questions and answers. I
hope the national security aspects will come up in the questions and
answers.
I think that there is not much more that I have to say by way of
,summary, Mr. Chairman, except that we believe that civil penalties
against a governmental unit are the most appropriate method of en-
forcing the statute. We believe that for a number of reasons. One is
-that we think that regardless of good faith or reasonable mistake,
there should be a recovery whenever someone's rights under the
statutes are violated. We also believe that they will constitute an
adequate remedy. The statute itself requires the Attorney General
-consider administrative sanctions wherever civil penalties have been
imposed.
The fact there is a civil penalty whenever the statute is violated
means, finally, that there will be a body of developing case precedent
-on the question of what violates the statute or not.
We are proposing here a new body of law. The fourth amendment
has been construed for 100 years. This statute will require court con-
struction over the next 5 or 10 years, and start to fill out what gaps
we cannot anticipate during the legislative process.
The notion of civil penalties means that there will be a number of
-suits that will address directly the issue of what is the precise coverage
.of the bill in the areas of uncertainty.
We do not urge the application of the exclusionary rule. We stress
that this involves the creation of a new right, and we don't have
-much doubt that a combination of civil penalties, liquidated damages,
attorney's fees - and punitive damages, plus administrative sanctions
by the Attorney General in any appropriate case, will serve the pur-
poses of keeping law enforcement officials in compliance with the law.
I have no reason to question their full willingness to comply.
Finally, I think it should be understood that the absolute. liability
that the remedies provision imposes on a governmental unit-Federal
Government, local government, and State governments if they
agree-apply without regard to the good faith or the reasonableness
-of the officers' actions, but the officers themselves, whether it's Federal
officers or State officers, can't be expected and shouldn't be expected
never to make an error, never to make a reasonable mistake.
Officers will, in applying this statute, as in applying the Constitu-
tion and statutes under the fourth amendment now, have to use their
,own judgment and rely on their own good faith and reasonableness,
 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
and that will mean sometimes courts will disagree, because courts,
now disagree under the fourth amendment. But police officers and
Federal agents will have to understand, and will have to be told, that
they are still in the position of exercising their good faith and reason-
able -efforts to 'comply with the law as it is passed by Congress.
The fact that there will be lawsuits arising and damages paid, even
in cases where despite their good faith and their reasonable judgment
the court holds that the matter should not have been searched and
seized, will not mean that they behaved improperly. They will only
behave improperly if they fail to exercise good faith and reasonable
judgment.
Thank you, Mr. Chairman.
Mr. KASTENMEIER. Thank you, Mr. Reymann.
You concede at the outset that this is a somewhat narrow approach
to the Stanford Daily decision. Could you discuss the bill in terms of
how it relates to the full scope of the Supreme Court's decision? After-
all, they discussed all sorts of records not just press records. And
then would you state why this is limited to that, and does not in fact
include: the, stated position of the Attorney General as to other-
possible searches?
Mr. HEYMANN. I wouldn't be frank, Mr. Chairman, if I didn't
say that one reason that the bill goes only as far as it does is the one
that Mr. Small-not the sole one, but it's an important one-that
Mr. Small mentioned. This is a bill that we have confidence is work--
able and we believe can proceed now on its own merits through the
legislative process, and not meet the fate of any measure that involved
many more difficulties. That is to say, as in the case of the shield
legislation, the situation with regard to other third parties, such as.
doctors, lawyers, and clergymen, is more difficult.
In what I say I will refer to many difficulties that led us to be con-
cerned about adding additional categories, but I would like you to be
aware that as I mention the difficulties I'm thinking not only of the'
fact that we not only don't know quite how to handle them properly,
but also the fact that in the back of my mind I fear that they would
hold back a needed and useful reform that can now move ahead.
The first question is, why not all third parties? Why not broadly
prohibit searches of all third parties unless there were some reason to-
believe that they would conceal or destroy evidence?
There are serious constitutional questions about designing a statute-
which would reach that far. It would be the position of the Department
of Justice that it would, in all likelihood, not be constitutional. But,
beyond that there seems to me to be an unworkability that arises
from the exception. There has to be an exception for situations where-
people may conceal or destroy evidence. Evidence that is in the
possession of a third party is generally in the possession of a wife or a.
husband, a father or a child, a mother or a child, a sister, brother, an
accomplice, or a friend. Each of these are close relationships.
I don't have many of my possessions in anyone else's house except.
those of close -friends or relations. Other people object when I leave my
stuff there. That means that there is, in each case, an almost impossible-
question that the law enforcement officer and the magistrates would be'
forced to address.
Would the person holding the evidence, the third party holding the
evidence, feel so close to the suspect as to present a real danger of
 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
? destruction? If that question is addressed in general, and if we answer
it in terms of parents will destroy for children, but children won't
destroy for parents, or both will destroy for the other, the bill is
deceptive.
It's deceptive because the exception will swallow the rule. If what
is wanted by the exception is a case-by-case analysis as to how Steven
Heymann, my son, feels about turning over evidence as to Philip
Heymann, his father, number one, it's unworkable; and, number two,
it hardly presents a picture of furthering privacy interests. You don't
`further privacy interests by prying into how a son feels about his
father, or a father about his son.
The question comes up separately as to whether we deal with
certain privileged categories, doctors, lawyers, clergymen. There are
two ways to deal with them. One way is for Congress to try to spell
out the protective categories of people. I'm afraid that that is extremely
,difficult. It's hard to imagine why surgeons should be protected-
-well, it's easy to imagine why a psychiatrist should be, or the files of
of a psychiatrist. It's hard to reason why you would protect the files
of a surgeon and not the files of a psychologist, or a social worker, or
-someone else in a therapeutic relationship..
The same is true with regard to the difficulties in defining lawyers
-and clergymen.
The only other alternative is to piggyback on State privileges and say
that wherever there's a privilege under State law, then there shall be
no search.
Again, here we found great difficulties. One, it would provide a
-probably unjustified patchwork, countrywide, of what Federal
officers would be searching for in Wisconsin and not searching for
in Illinois. And, number two, it's by no means clear that the privi-
`lege that the State of Wisconsin or the State of Illinois gives should
apply to searches as well as testimony. Sometimes the purpose of
-the privilege is just to avoid disrupting a further relationship by
-having one of the parties help convict another.
I think I've said enough. There's a world of difficulties out there
when you go the route of all the different parties, or the route of only
? doctors, lawyers, clergymen.
There is a medical records statute that I think is before your sub-
committee, Mr. Chairman, which seemed to us to be a more sensible
place to address the entire broad question of the medical privacy.
And certainly I feared getting us into this quagmire would set us
-way back in terms of a needed reform.
Mr. KASTENMEIER. All right. At the outset, conceptually one could
-possible envision a broad act going beyond the first amendment,
-perhaps applicable to Federal systems, but as I take it that would
suggest itself as-or that the best line was to limit it to first amend-
ment and then go all the way, Federal systems, State, and local, all
the way through, to afford the far-reaching bounds or reach of this
narrow scope.
Do you think that the bill in its present form is as well written for
-the purpose of first amendment coverage as it can be written? Does it
conform to your thinking as to full first amendment coverage?
]\MIr..HEYMANN. I am entirely satisfied with it. Nothing has happened
-in the process of drafting, in the process of discussions, that leaves me
,-other than satisfied with it.
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I-am -delighted that it has to go through a legislative process, Mr.
Chairman, because I will be even more confident when it's been
poked and pushed at. But it's had a lot of that in the executive branch.
Mr. KASTENMEIER. You've used the term "work product. Does
the term "work product"-is that to protect reports of Government
agencies which might be leaked to a reporter, such as the Pentagon
papers?
Mr. HEYMANN. I'm sorry, Mr. Chairman, I'm afraid I missed some
-crucial words in your question when the buzzer went off.
Mr. KASTENMEIER. Would the term "work product" protect re-
ports of a Government agency which might have been leaked to a
reporter, such as the reports of the Pentagon Papers?
Mr. HEYMANN. They would not be work product, because they were
not produced for publication, Mr. Chairman. They would be protected
,documentary materials which would be subject to requirements of
subpena first, subject to the four exceptions.
Mr. KASTENMEIEIi. What about a letter, a confidential letter, to a
-newspaper, to a reporter, with no intention that the letter itself be
ublished? Could that letter be exempted from search?
Mr. HEYMANN. I'm not quite clear on what the letter would be. It's
not intended for publication, but prepared
Mr. KASTENMEIER. A letter to a reporter
Mr. HEYMANN [continuing]. Pointing out or revealing
Mr. KASTENMEIER [continuing]. Certain information to the reporter,
with no intention that that be published.
Mr. HEYMANN. That would be work product. In other words, it
Would be materials prepared for purposes of publication. If the letter
itself is saying, "Why don't you go look in such-and-such a place
and talk to these people," that would be work product, because it
-was prepared for purposes of the publication process, even though it
was meant to be kept confidential forever.
Mr. KASTENMEIER. What would you say about the possibility of
broadening that work product somewhat to include not merely
material created by the person and then communicated, but also
assembled and organized to be disseminated? What effect would that
have?
Mr. HEYMANN. I would have no objection, and it, indeed, is our
-position that in some cases, assemblage will be work product, but it
will be difficult to sort out. This is a matter that will take a while for
courts to sort out. If a reporter were, himself, to get a number of files
-or business records, or something else that were prepared for other
purposes and it showed to the average eye nothing particularly in-
teresting and newsworthy, and if the reporter were to assemble them
in such a way as to show that they really told a very interesting story
,of where the money was going and what was being done, then the as-
sembling of those materials in an appropriate way would be work
product.
But it is a difficult area and is one that will have to be worked out,
-I think, case by case.
Mr. PAULEY. If I might interject something--
Mr. KASTENMEIER. Certainly, Mr. Pauley.
Mr. PAULEY. I think that the test under the bill is if the assembly
-or organization of records is itself done in a creative way, then they
become materials created by the person assembling them.
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But everyone organizes materials that he receives, or assemble
them, whether it's in alphabetical order or in some other way. If one
were to
Mr. KASTENMEIER. Use the copyright test.
Mr. PAULEY. I'm not familiar with the copyright test, but the
problem of applying a broader than creative test for assembly is that
the work product category would swallow practically every record
that someone received, and that in turn would mean that all those
records would become immune from search, even in the face of a show-
ing of likely destruction or concealment.
Mr. KASTENMEIER. Now, all that might be affected, of course, by
the national security exemption, such as the C5A scandal, or the
Pentagon Papers, or
Mr. HEYMANN. The short answer, for example, on the C5A scandal
would be that it would be clear, I believe, that there was no potential
violation of the espionage statutes in publishing the C5A information
and, therefore, there couldn't be a search of the press.
But I'd like to be more general about it. There is a longstanding
debate, which is fortunately largely theoretical and has never been
tested between the press and the executive branch, on the question
of the criminal liability of the press for publishing national security
secrets.
I believe it's true that in the history of the country, or at least since
World War I, there has never been a prosecution of the press for pub-
lication of national security secrets.
It is the executive branch's position that in an extreme enough case
the statutes would cover it. It is the position of much of the press that.
the arcane language of the statutes does not cover publication.
There never having been a prosecution, then perhaps there has
never been a search of the press for these purposes.
The discussion goes on in terms of
Mr. KASTENMEIER. At any level of government?
Mr. HEYMANN. Beg your pardon?
Mr. KASTENMEIER. At any level of government there has never
Mr. HEYMANN. Well, it has to be Federal. And I think there has
never been a search for these purposes, never a prosecution.
What. we've tried to do with the bill is leave that age-old debate,,
which has had no practical consequences, to my knowledge, in the
last 60 years, and. perhaps never in the history of the country, exactly
where it was and not deprive anyone of the right to continue to
debate this issue in the years ahead.
It's obviously the same thing that was done in the criminal code,
where the espionage provisions were in the Senate simply left in
place.
Mr. KASTENMEIER. Yes. I haven't read through all these code
references, but let me suggest that the Progressive case, that the Justice
Department desires to search and seize certain material located
throughout the magazine's office, you would be able to do that, would
you not, if this bill were enacted?
Mr. HEYMANN. We could not search the Progressive's office under
this bill unless we were prepared to say that we were searching for
evidence of a violation of one of the espionage statutes. In that case,
there are special atomic energy statutes.
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,If we had no contemplation of a criminal prosecution, we could
not search.for it.
If we didn't have the Progressive case, with its substantial dispute
about whether there is really dangerous enough publicly held infor-
mation involved or not, if we were talking about a diagram of a
neutron bomb plainly taken from the Defense Department-that is
-the type of case that has been the subject of dispute over 60 years-
which was about to be published, and it would be treated as a crime
to publish it, in that case at least a claim would be made by the
Federal Government that it had a right to search and seize.
I don't like to think about the Progressive case, because it's still a
,case that
Mr. KASTENMEIER. Yes, I agree with you. I'd just as soon you'd
take a hypothetical, but that was a case that suggested itself. I agree
-with you.
Actually, the truth of the matter is, if you had a Justice Depart-
ment that was intent on prosecuting such a case, there's nothing in
-this bill that prevents it?
Mr. HEYMANN. That's correct. And if it were intent on prosecuting
such a case, there's nothing in this bill that would prevent them from
,searching in connection with the prosecution.
Mr. KASTENMEIER. At this point I'd like to yield to my friend from
North Carolina, Mr. Gudger.
Mr. GUDGER. Thank you, Mr. Chairman, I apologize for not arriv-
ing here at the outset.
I have read the Chairman's comments and opening remarks and
regret that I didn't have the opportunity to hear them. I am pleased
to have been able to hear the testimony of Assistant Attorney General
Philip Heymann.
My concern is in three or four phases:
In the question asked about the diagram of the neutron bomb,
which presupposes the acquisition of property in violation of the law, I
assume that is classified information lifted corruptly and, therefore,
this would be a product of crime. It seems to me that classically search
and seizure has been available long before the current decision holding
that evidence might be sought to secure the tools of crime or the prod-
uct of crime.
Mr. HEYMANN. That's correct, Mr. Gudger.
Mr. GUDGER. Therefore, we would have no dilemma dealing with
that problem, and we would not be under the work product rule which
this statute presents.
Am I correct about that? Or do you think it would be helpful to
this statute to declare again that this would not restrict the power of
search and seizure for the product of crime?
Mr. HEYMANN. I think you've taken us through the statute, Mr.
Gudger, with such finesse that I am startled. You are absolutely right
The statute itself says that work product does not include instrumen-
talities of a crime, and a stolen diagram of a neutron bomb would not
be work product. Since it isn't work product, there would not be an
absolute ban on searches, and it would be in the provision-it would
be documentary materials which you have to subpena first unless
you think they're going to be destroyed.
But you're right,- there would be no absolute ban- on search for
any stolen documents under the bill. `
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26
Mr. GTDGER. Even though the bill only deals with this subject
inferentially, in the manner in which you have defined it, by declaring
in effect that work product does not include the product of crime. It
is saying that the law as it preexists remains available, and search and
seizure without the restrictions imposed here, would still be available?'
Mr. HEYMANN. I think it is very complicated, and I don't think,,
that's quite right, Mr. Gudger. What it does-well, let me begin two
steps back:
Long before the Stanford Daily decision, it was the law that you+
could-indeed, for the last 100 years it's been the law-that you could
search for any instrumentalities or fruits of a crime.
A stolen diagram of a neutron bomb would be the instrumentality
or the fruit of a crime. Well, it would be the fruit of a crime.
This bill, however, does restrict the Federal Government's power
to search for fruits of a crime. It doesn't say that there is absolutely
no power to search, ever, because the fruits of a crime are never work
product. Work product is always something that's created by the-
reporter himself, or somebody for the reporter. The fruits of a stolen:
document is never a work product.
However, there are other protections in the bill which apply even,
to fruits of a crime, like a stolen diagram of a neutron bomb. And
those provisions say that we have to try to go to a court and get a
court order to have it returned first, before we go in for a search.
And those provisions would still apply.
Mr. GuDGER. ,I direct your attention to the language at the top of
page 5 of the bill, reading:
In the event a search warrant is sought pursuant to this subparagraph, the-
person possessing the materials shall be afforded adequate opportunity to submit
an affidavit setting forth the basis for any contention that the materials sought
are not subject to seizure.
This is a part of that section of the act which defines the four
exceptions, and I assume that the process to be pursued would be
that the application to the magistrate would set forth an assertion,
that these four exceptions did not apply in the instance under inves-
tigation, but that the person to be searched, or the publishing house
to be searched, would be able to contest that negative assertion in
the application for the search warrant.
Now, does that presuppose that there must be notice and an oppor-
tunity to present this counter affidavit before there is to be a search
made, even though the search is privileged under item (3), where
there is reason to believe that the giving of notice pursuant to subpena.
duces tecum would result in the destruction, alteration, or conceal-
ment of the materials?
Mr. HEYMANN. No, it does not. We are now in the section that
would apply if there was a stolen document, like the stolen diagram
of a bomb. In that category, the first three exceptions allow us to goahead with the search without giving notice, without an opportunity-
to appear. The first three exceptions are life in danger, the person
searched is himself a suspect, or the one that you just read where
the;: document. may be,:destroyed.
Those are all exceptions where we feel we have to be able to got
right in and search with no notice. And, as you point out, Mr. Gudger,
to give notice where you think it's going to be destroyed or altered
would be to have it destroyed or altered.
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27
Mr. GUDGER. Correct.
Mr. HEYMANN. The provision. you read, which said that we will
give notice and opportunity to contest, only applies to the fourth
exception, or stolen documents.
Mr. GUDGER. The subpena duces tecum.
Mr. HEYMANN. That's right. And, that's when we've issued the
subpena, the court has said you're right, ordered the person to comply,
the person hasn't complied and says they're going to appeal, and the,
appeal. process is going on. If we have to get the material, then we'll
go in and ask for a search warrant. But on that occasion, and on only
that occasion, the suspect would, have a right to_ submit an affidavit
and be given notice.
Mr. GTDGER. Thank you for that clarification.
It seemed that we were dealing with item (4) within subsection (b),
and when I saw the use of the term subparagraph it was not clear to
me that it meant the sub-subparagraph. Possibly a little clearer
language here would make it quite obvious that this does not restrict
the other three circumstances.
Now, I have only one other question.
Other bills have been introduced dealing with this same concern,
one of which Lam , cosponsor of, which would grant protection to all
third parties and not single out the media. I am pleased that you
have not, in this bill, narrowed.it to the press but have extended it to
all media. I think this is commendable, and I think the document's
definitions are excellent.
Mr. HEYMANN. Thank you, sir.
Mr. GUDGER. On the other hand, there was quite a debate last
year as to whether or not the privilege of innocent third parties should
apply to all, and if we were justified in singling out media to give it a
preferred protection uuder the law, as though it were a constitutional'
protection.
The reason that I addressed my bill to the broad concern of trying
to afford protection to all third parties, and narrowed it, of course,
to Federal jurisdiction, was with the thought that if we did adopt a
procedural protection that would apply in all Federal cases and with
respect to all Federal prosecutions, and give all innocent third parties
the benefit of that protection, we would afford a model to the States
which they, in turn, could adopt-and I was assured that my own
State would at least consider adopting such a protection.
Do you see vast benefit in this approach, in lieu of the narrower
approach so far as jurisdiction is concerned, the Federal approach,
with the thought that perhaps the States might emulate a good
example?
Mr. HEYMANN. I'm afraid I do, Mr. Gudger. I would like to per-
suade you that this is a better approach.
One way of saying it is that the problem with regard to searches of
the press, and also in general the problem with regard to searches of
third parties, is a problem at the State and local level, and not at the
Federal level. There is no recorded example of the Federal Government
searching,. anybody in the press.
Mr. GuDGER. May I ratify'that and say that?'the'Attorney -General
has already adopted the administration of procedures which assure
protection at the Federal level.
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28
Mr. HEYMANN. Yes, sir.
Mr. GUDGER. That I am aware of.
Mr. HEYMANN. So that it would not be effective to provide that
the Federal Government, which is least perceived as a danger and is
least dangerous to any form of third party, is the only party which is
actually restrained or restricted.
Beyond that, it does seem to me that the problem we're dealing
with is a problem of first amendment freedom, and a problem of fear
of insecurity, and the consequences of fear in not keeping notes and
not having sources in the first amendment area.
You referred, Mr. Gudger, a minute ago to the fact that not so
much changed in 1968 with Warden v. Hayden, where the Court
said law enforcement could seize mere evidence. Third parties have
been searched for guns, shirts, documents, books, and records, for
the' history of the country. There aren't many cases that are more
than 100 years old under the fourth amendment. But this is a very
old problem. And there is nothing that has dramatically happened
to cause new concern about third-party searches. Something dramatic
did happen with regard to causing fears in those who want to publish
materials.
- Mr. GUDGER. Thank you so much, Mr. Heymann. You certainly
have enlightened me and have been very responsive to my questions.
I yield back the balance of my time.
Mr. KASTENMEIER. I thank my colleague, and on behalf of the
committee I thank you for your appearance today, which inaugurates
our hearings on the subject. We will follow up with other hearings,
and we will be announcing the precise persons, days, and times of
hearings.
We would thank Mr. Heymann and the Justice Department for
perhaps further elaboration on certain technical aspects of the bill as
it develops, as we might call upon them.
Thank you very much.
The committee is adjourned.
[Whereupon, at 3:10 p.m., the subcommittee was adjourned.]
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ZURCHER V. STANFORD DAILY
THURSDAY, MAY 24, 1979
U.S. HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE JUDICIARY,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE,
Washington, D.C.
The subcommittee met at 10:35 a.m. in room 2226 of the Rayburn
House Office Building, Hon. Robert W. Kastenmeier (chairman of
the subcommittee) presiding.
Present: Representatives Kastenmeier, Mazzoli, Gudger, Railsback,
and Sawyer.
Staff present: Bruce A. Lehman, chief counsel; Joseph V. Wolfe,
associate counsel; and Audrey Marcus, clerk.
Mr. KASTENMEIER. Ths subcommittee will come to order. This
.morning the subcommittee will continue its hearings on the question
raised by the Zurcher v. Stanford Daily case and represented by H. R.
3486, the so-called "Press Protection Legislation" and other pieces
.of legislation related to the general question raised by that Supreme
Court case.
We are very pleased to have as our witnesses this morning two
distinguished persons; Mr. John Shattuck, Washington director of
American Civil Liberties Union and Mr. Paul Davis who is president
of the Radio Television News Directors Association.
With the consent of the witnesses and because Mr. Davis does
have a potential time problem, I will ask Mr. Davis to come forward
first. And I might also indicate that Mr. Davis is from Illinois and is
the news director of WCIA-TV in Champaign, Ill.
Mr. Davis, you are welcome. You have a brief statement and you
may proceed, and I know other members will be momentarily joining
us.
Mr. DAVIS. Thank you, Mr. Chairman.
Mr. KASTENMEIER. I am sure Mr. Railsback will be here shortly.
He is from your state of Illinois.
TESTIMONY OF PAUL DAVIS, PRESIDENT, RADIO TELEVISION
NEWS DIRECTORS ASSOCIATION
Mr. DAVIS. I am also president of the Radio Television News
-Directors Association. We are an organization of 1,600 news personnel
.at television and radio stations across the country and at the major
broadcast networks.
I would like to think I represent the search end of the search
-warrants.
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RTNDA participated in the Stanford Daily procedures before the
Supreme Court. We have actively supported efforts to provide statu-
tory protection from the kind of broad scale search permitted in that
case, and we appreciate this opportunity to comment upon the admin-
istration's proposal to protect the media from investigative abuse.
I might say that last year I testified on some of the f actual aspects of
the search warrant and I will be glad to raise some of those sane con-
cerns that we have at a practical level.
Today we are testifying on the substance of the bill as presented
before you. In the previous testimony we supported the legislation to
protect all the nonsuspects, not just journalists, from routine searches.
We believe, along with Justice Stevens, that third party searches
invade the privacy which the fourth amendment guarantees to all.
It does not prohibit searches of the files of lawyers or ministers or
doctors, those professionals whose confidences are protected against
disclosure by the laws of almost every State.
We would like to see the administration's bill broadened to restrict
searches of property of all nonsuspects. But we recognize that there
are special first amendment interests at stake in newsroom searches
that make the need for protection of journalists most pressing.
Given that more limited goal, RTNDA supports the administra-
tion's bill with some qualifications. We approve the broad protection
for journalists' work product, which Government can have little or
no legitimate interest in obtaining.
Both with work product and other documentary material, however,
we are concerned about the breadth of the exceptions which the ad-
ministration has proposed to the general ban on searches.
First, in the present form of sections 2(a)(1) and 2(b)(1), the allow-
ance of searches for national security or classified information disturbs
us.
Many of the statutes listed allow documents to be classified indis-
criminately, and national security agencies could thus hamper publi-
cation of embarrassing information by classifying it.
Under these exceptions, for example, no doubt the Pentagon papers
would have been subject to seizure. We would require an agency
requesting a search to demonstrate to an impartial magistrate that
the use of the specific documents in question would pose a clear and
present danger to the security of the United States before a search
could be permitted.
RTNDA does not question allowing a search when it is truly
necessary to prevent death, serious bodily injury to a human being,
or destruction or alteration of required materials.
The administration's bill, however, would permit a search if there
is only "a reason to believe" one of these events would occur.
That standard is too permissive, as it would allow searches on the
basis of mere suspicion. Instead, we believe that "probable cause"
should be used as the standard for determining the need for a search.
With that well-accepted standard, the interests in protecting human
life and assuring the availability of records necessary for prosecution
could be protected, while requiring the police to have information of
probative value which clearly shows the danger of delay.
I come from central Illinois which has a number of small counties.
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Our concerns about the exception we are talking about here, to be
the rare occasion of abuse we anticipate rather than a daily experience
of abuse.
And when this bill was directed to-when the issue was directed
to Congress last year, at that very moment we had five police depart-
ment investigations underway in my news department, including
primarily small counties.
In one of those counties, there was a sheriff who had made a famous
quote, "I am the law." He was under investigation by a weekly
newspaper in this county. It is a very cozy county. The sheriff, the
prosecutor, the judge, are all friendly. And it was conceivable to us
at that time that that newspaper had the risk of a search warrant
for one case when in fact they might be looking for information about
the investigation of the sheriff.
I think it is in the rural areas where you will find the abuse most
probably in the coming years. It is also in those rural areas where
you have the magistrates who are not lawyers-or required in many
States to be lawyers and not required by the Supreme Court to be
lawyers-who understand probable cause because they deal with that
issue on the daily basis, but may have some trouble discerning "Reason
to Believe"-and partly because of our concern of the quality of the
magistrates who would issue a search warrant, we would urge the
stronger standard of probable cause.
Finally, RTNDA is concerned about section 2 (b) (4) of the proposed
bill, which deals with searches following resistance to a subpena
duces tecum.
As we understand the bill, the validity of such a subpena could be
contested either by a motion to quash before a court-order compliance
with the subpena, or in a hearing before a search warrant is issued.
The right of a party to contest a subpena in an adversary proceeding
before compulsory action is taken should be made clearer, because our
thinking is that the present bill is somewhat disjointed on this point.
We are also troubled by the provision allowing a warrant to issue if
there is reason to believe that further proceedings under the subpena
would "threaten the interests of justice."
Since any delay in a judicial proceeding may, in some sense, be
threatening to the interests of justice, this provision is far too broad.
Instead, the court issuing a warrant should be required to make a
specific finding that the severity and immediacy of the need for the
documents sought, as well as the societal importance of the Govern-
ment's case, outweighs the first amendment and due process interests
in allowing full judicial review of the defenses to the subpena.
With these changes, we believe that the administration's bill, which
we are, incidently, very happy to see, applies to the States, which it
did not in the testimony presented by Mr. Haymen last year-only
to Federal officers. We feel it would provide the protection necessary in
this area for the operation of a free press, protection dangerously
weakened by the Stanford Daily decision.
Thus, RTNDA urges prompt action to pass this legislation if
enactment of broader third party protection is not feasible.
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[The prepared statement of Mr. Davis follows:1
STATEMENT OF PAUL DAVIS, PRESIDENT, RADIO TELEVISION NEws DIRECTORS
ASSOCIATION
Mr. Chairman: I am Paul Davis, news director of WCIA-TV, Champaign, III.,
and president of the Radio Television News Directors Association. RTNDA is an
organization of 1,600 news personnel at television and radio stations across the
country and at the major broadcast networks. RTNDA participated in the
Stanford Daily proceedings before the Supreme Court, and has actively supported
the efforts to provide statutory protection from the kind of broad scale search
permitted in that case by the Supreme Court. We appreciate this opportunity to
comment upon the Administration's proposal to protect the press from investiga-
tive abuses.
In previous testimony,. RTNDA has supported legislation to protect all non-
suspects not just journalists, from routine searches. We believe, along with
Justice tevens, that third party searches invade the privacy which the Fourth
Amendment guarantees to'all. In particular, the proposed bill does not prohibit
;searches of the files of doctors, lawyers, and ministers-professionals whose
.confidences are protected against disclosure by the laws of almost every state. We
-would like the Administration's bill broadened to restrict searches of the property.
of all non-suspects. But we recognize that the special First Amendment interests
.at stake in newsroom searches make the need for protection of journalists most
,pressing.
Given that more limited goal, RTNDA supports the Administration's bill,
with some qualifications. We approve the broad protection for journalists' work
roduct, which government can have little or no legitimate interest in obtaining.
-Both with work product and other documentary material, however, we are con-
cerned about the breadth of the exceptions which the Administration has proposed
to the general ban on searches.
First, In the present form of sections 2(a) (1) and 2(b) (1), the allowance of
searches for national security or classified information disturbs us. Many of the
statutes listed allow documents to be classified indiscriminately, and national
security agencies could thus hamper publication of embarrassing information by
classifying it. Under these exceptions, for example, no doubt the Pentagon Papers
would have been subject to seizure. We would require an agency requesting a
search to demonstrate to an impartial magistrate that the use of the specific
documents in question would pose a clear and present danger to the security of
the United States before a search could be permitted.
. RTNDA does not question allowing a search when it is truly necessary to pre-
vent death, serious bodily injury to a human being, or destruction or alteration of
required materials. The Administration's. bill, however, would permit a search if
there is only "a reason to believe" one of these events would occur. That standard
is too permissive, as it would allow searches on the basis of mere suspicion. In-
stead, we believe that "probable cause" should be used as the standard for deter-
mining the need for a search. With that well-accepted standard, the interests in
protecting human life and assuring the availability of records necessary for prose-
cution could be protected, while requiring the police to have information of pro-
bative value which clearly shows the danger of delay.
Finally, RTNDA is concerned about section 2(b) (4) of the proposed bill, which
deals with searches following resistance to a subpoena duces tecum. As we under-
stand the bill, the validity of such a subpoena could be contested either by a mo-
tion to quash before a court ordered compliance with the subpoena, or in a hearing
before a search warrant is issued. The right of a party to contest a subpoena in an
adversary proceeding before compulsory action is taken should be made clearer,
because our thinking is that the present bill is somewhat disjointed on this point.
We are also troubled by the provision allowing a warrant to issue if there is
reason to believe that further proceedings under the subpoena would "threaten
the interests of justice." Since any delay in a judicial proceeding may, in some
sense, be threatening to the interests of justice, this provision is far too broad.
Instead, the court issuing a warrant should be required to make a specific finding
that the severity and immediacy of the need for the documents sought, as well as
the societal importance of the government's case, outweighs the First Amendment
and due process interests in allowing full judicial review of the defenses to the
subpoena.
With these changes, we believe that the Administration's bill would provide
the protection necessary in this area for the operation of a free press, protection
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33
dangerously weakened by the Stanford Daily decision. RTNDA thus urges
prompt action to pass this legislation if enactment of broader third party protec-
tion is not feasible.
Mr. KASTENMEIER. Thank you, Mr. Davis, for a brief, concise, but
very clear and helpful statement.
Your organization is a large one : how do you arrive at positions?
Do you meet occasionally in conferences or on occasion?
Mr. DAVIS. We have both regional and national meetings as well
as the board meetings that occur three to four times a year. Most
recently on issues before the Congress, including rewrite. And this
position-under the first amendment positions-we at the board level
have had lengthy discussions of the issues and taken positions at the
end of such meetings. Obviously, the more technical points of law in-
cludes discussion with counsel. The board itself has not attorneys
sitting on it.
Mr. KASTENMEIER. But you have been able within your organiza-
tion to gain clear consensus about-which is reflected.
Mr. DAVIS. On this issue, yes, sir. That is not true of all issues. I
might say.
Mr. KASTENMEIER. Also in your statement, as I understand it,
you say the value of H.R. 3486 is that it does, in fact, go beyond
Federal activity and extends to State and local applications for
warrants or searches.
And without that, it wouldn't be particularly useful.
Mr. DAVIS. Nor clear to a journalist who might, as in my case, coven
two States. I have Indiana coverage. Television stations and radio
stations have two States, if not three, to worry about.
Mr. KASTENMEIER. This was a question we confronted before in
connection with newsmen's privileges, to make sure that it was na-
tional in character, interstate.
I would like at this time to yield to my colleague from Illinois,,
Mr. Railsback.
Mr. RAILSBACx. Thank you, Mr. Chairman. I want to first of all
welcome fellow Illinoian, Mr. Davis. Your statement was very concise
and very understandable. Are you familiar with the Mathias bill that
has been introduced?
Mr. DAVIS. No, sir.
Mr. RAILSBACx. The Mathias bill is pending in the Senate. As a
matter of fact, I have recently introduced it in the House. The bill,
H.R. 4181, would substantially expand the administration-type
approach to cover other third parties as well.
And I must say that until I got involved with Senator Mathias I
was not aware of what appeared to be many other instances of innocent
third parties being kind of randomly riffled for information that did
not relate to them at all. This causes me great concern.
So I am particularly interested to hear what you have to say about
that problem as well as your thoughts that maybe there should be a
broader approach to include all third parties.
Mr. DAVIS. There were several bills in the Senate last Year at the
time of inquiry on what I called the Bayh bill which was a third-party
bill that was not restricted to press only. I don't know if the Mathias
bill was introduced at that time or not, but our position then was one
of concern about trying to define the press, which-Senator Heinz' bill
that he introduced from Pennsylvania tried to identify and define the
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press. And his definition would have probably excluded the Stanford
Daily. So you get into a real problem trying to do that.
Now, in some of the States that have passed the remedy to the
Stanford Daily decision, including California, they have done by iden-
tifying, as this bill does, the items or the situations rather than trying
to define what the press is, and that's safer.
Mr. RAILSBACK. Yes. I think that Senator Bayh introduced a bill a
year ago.
Well, I thank you for appearing and I appreciate your statement.
Mr. KASTENMEIER. I yield to the gentleman from Kentucky, Mr.
Mazzoli.
Mr. MAZZOLI. Thank you and welcome. I have no specific question,
but let me just ask you to comment on why or how you would answer
questions which are posed to me at home quite a bit, and that is, how
come the press is seeking a preference here? How come you are putting
them in a certain preferable position? Why aren't they treated like
I am? I, meaning the people who are propounding the question to me.
I wonder how do you handle them when you hear these views? I
assume you have your station set up in a fashion where you have let-
ters sent in and comments. How do you handle that situation?
It's one thing to talk with a panel of lawyers in a setting of Wash-
ington, but talk to me like you are back at Springfield.
Mr. DAVIS. If you will allow first a sentence to say that our position
on this bill is all third parties and not press. So we are not arguing for
special preference.
We have said, however, I think, that we will accept it. It is a dilem-
ma. In fact, in a meeting at Portland a week ago, I suggested we aban-
don the word "privilege" because it is misconstrued by the public or
interpreted as being a desire for an elitist position.
And our position as the press is really to represent the public and
their interests and to be their representatives in places they cannot go.
And just by the very limitations of life.
And when we lose sight of that fact, then we have misconstrued
our own associations and our work, which is what the privilege is all
about.
I still believe there is a special role for the press that is separate, even
though the Supreme Court is now suggesting that the citizen and the
media have about the same protection and there is no greater. I dis-
agree with that, but I think if we lose sight of the fact that the reasons
for our exceptions provided in the writing of the constitutional Bill of
Rights or in subsequent court rulings where they have talked about
our special rule, if we lose sight of why it is there, then we lose the
privilege.
Mr. MAZZOLr. That is interesting because I have said the same about
our profession. Being Members of Congress, if we didn't decide the
fact that we have to account for what we do and perhaps hold our-
selves to a higher standard in some respect than the average person
on the street, even though our interests may be common, then it seems
we have lost sight of our particular role and responsibility, and then
will be entitled to the lack of respect that seems to be rampant in the
country.
Let me ask you one question. Assuming that we drop the word
"privilege," do you feel that this bill and perhaps as Mr. Railsback
talked about, the expansion of it, provide something other than a kind
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of special handling for the press or perhaps those groups that might be
fitted into the bill in that it indeed does provide a protection to the
public rather than protection to these particular groups.
Mr. DAVIS. I think we would encourage the expansion of the bill,
but I would not want to see the administration's bill that you are con-
sidering, delude what is meant for the press.
I am speaking of the word "privilege" as a red-flag word rather than
a concept when you asked me the earlier question.
One of the things that concerns me about the public generally, Mr.
Mazzoli, is the couple of polls recently taken that show that people
tend to support reporter privilege, which I would have guessed incor-
rectly on.
I had the feeling from the letters that you mentioned and conversa-
tions, that there is a general hostility toward the press when it seeks
a privilege.
On the other hand, they did support police invasions of the news-
room with the search warrant. So it left me a bit unsettled.
Mr. MAZZOLI. I think it left all of us here in Congress, unsettled.
But I thank you very much, Mr. Davis. You have been very helpful.
Thank you, Mr. Chairman.
Mr. KASTENMEIER. The gentleman from Michigan, Mr. Sawyer.
.Mr. SAWYER. Yes. I am particularly interested in your thoughts
about expanding the bill. I have a bill in, myself. Recently, I was
charged with a study group to explore this issue and we found in
working with it that you can, without pinpointing the press, situa-
tionally identify the circumstances that would protect all of the
legitimate interests of the press, as well as those of other innocent
individuals from the execution of a search warrant.
I really don't know how many people on this panel or even maybe
on the whole committee have ever been present at the execution of a
search warrant. I have, a number of times, and it is a pretty scary
thing if you are an innocent party.
They are almost invariably executed at night, preferably in the wee,
small hours of the morning, because that is when you are most likely
to find the occupants you are looking for in the execution of a warrant.
Normally, the door goes down and there are people going through
the front and the back doors simultaneously, climbing stairs, and
pulling people out of bed. In those instances where a search warrant is
justified and you're dealing with people who you are intending to
arrest anyway, it's probably the only way to do it.
This is particularly true in connection with drug cases, for example,
where you actually have to get the drugs for the purpose of making
chemical analyses, et cetera, to identify them. If you were to knock
on the door, the drugs are easily flushed down the toilet and usually
you are dealing in those circumstances with people who are very
dangerous anyway, so it is not without risk.
But on the other hand, I can visualize some poor tourist in Washing-
ton, D.C., with his camera taking pictures of a riot. Then when he
returns home, his door is broken down in the night, because somebody
decided he had negatives that identify some rioters.
Another example would be a public bookkeeper for a number of
businesses who, because one of his clients is suspected of something,
is suddenly approached.
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So it just seems to me that if we work carefully on this that it is
possible to situationally identify the same concerns that the press is
interested in and put under the umbrella perhaps even lawyers whose
clients may be suspected of something as well as other innocent parties.
A privilege exception may work fine if you are challenging a sub-
pena duces tecum, but it is not much help in the search warrant issues.
Search warrants are usually issued by lower courts, which vary greatly
in both their attitude toward search warrants and their own ability,
let's say.
And it really is a scary thing, if you see how they are executed. So
I am very happy to bear that your organization, too, feels that legis-
lation should be expanded to cover all innocent third parties, similarly
situated to the Stanford Daily.
I read that decision, and I believe it extends to numerous people
and various circumstances.
Thank you very much. I enjoyed your presentation.
Mr. DAVIS. May I comment briefly?
Mr. MAZZOLI. Certainly.
Mr. DAVIS. The thing that really drove that home was the invasion
in Montana Aich, I believe, is in the testimony this morning, which
is a case that was most discomforting to professionals, lawyers, psy-
chiatrists. They are not necessarily all that confidential to a search
warrant.
You were talking about the disruption of the residents of Mattoon,
Ill., which happens to be in my coverage area. I am thinking of a dis-
ruption to a broadcast news operation when the search warrant hit,
and essentially being frozen from doing the work, as well as the fact
that many of the pieces of information that they might seek to secure
could be on a tape that is about to be used for another purpose in
broadcasting.
One incident involved a tape on which there was an additional
conversation that was a confidential conversation and was not the
one being used.
So the AP had a dilemma there and refused to yield on the search
warrant and also that case in Helena showed how much distrust there
was about AP's method of handling materials, so they chose to ignore
the subpena and use an available search warrant.
This distrust with the search warrant could be materially disrupt-
ing and there could be a lot of confidential information that I would
not like anyone to see.
Mr. SAWYER. They are having that problem in Minnesota. There
is an appeal in a case where they managed to move to quash the
search warrant before it was fully executed.
It was allegedly for evidence establishing that a client had com-
mitted perjury.
But normally you don't get the privilege of testing a search warrant
unless you are stronger or better armed than those executing it.
Mr. DAVIS. We recommended to our membership that they attempt
to cause the information taken to be sealed and then go to court
subsequent to any search warrant to try to act specifically on what
was taken.
That is the only opportunity we know.
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37
Mr. SAWYER. The situation is particularly bad when you are looking
for just a document or a picture, for just about anything in the resi-
dence is subject to a thorough search, because it is reasonable that
the picture or document could be in those places.
Thank you very much, Mr. Chairman.
Mr. KASTENMEIER. Thank you, Mr. Davis, particularly in regard
to our colloquy or your colloquy with Mr. Mazzoli. While privilege
is not truly embedded in this legislation, it is analogous with the
so-called newsmen privilege legislation.
I appreciate that you resisted the term "privilege." Many people
in news and communications didn't like the term because it suggested
something extraordinary beyond what ordinary people are given in
terms of rights.
Some States have considered shield laws largely supported by the
news community and euphemistically entitled "Free Flow of In-
formation." Last week in my State, a Supreme Court Justice, re-
ferring to a number of cases including the progressive case, suggested
that there was some hypocrisy on the part of publishers that pro-
tested secrecy when in fact such pieces of legislation on newsmen's
privilege enabled the press to keep secret certain information. It
was suggested that this was not dissimilar from the Government
being able to keep secret certain information and perhaps they ought
to be equated somewhat.
But nonetheless, I appreciate your view and the notion that this
should be broadly applicable.
Mr. Davis. I think the problem with that attitude and it's my
personal opinion, that it is too pervasive, that we are as reporters,
protecting sources what haven't sought protection, because of our
experiences in the late 1960's and early 1970's, when there was such
constant dilemmas, a flow of dilemmas that we had to back up and
become very stubborn and resist almost everyone and everything,
otherwise our credibility was going down the tubes.
Today, journalists should be more selective. The protection is to
the source, not to the reporter when we protect. The protection is the
protection of the work product relating most often to sources and
information and that is a part of the editorial function.
Ultimately it is for the benefit of the public and not to keep secrets.
Mr. KASTENMEIER. I appreciate your comments and I think your
observation is totally correct.
Thank you very much for your appearance here today, Mr. Davis,
you have been very helpful.
I yield to the gentleman from North Carolina.
Mr. GUDGER. The chairman heard from me very extensively
yesterday and I think I probably have used up all the time I may be
entitled to.
Mr. Davis, I wanted to state that during the 95th Congress I pre-
pared, with the help official-in Georgetown-a bill designed to
make procedurally unavailable, a search warrant, in any quest for
evidence in the hands of an innocent third party. However, that act,
if enacted by Congress, could only apply to the Federal jurisdiction
and not to the States.
Of course, the Stanford Daily case and all of these cases that have
been referred to, relate to situations where law enforcement agents
of the State were involved investigating State law violations.
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What we have here in H.R. 3486 is an attempt on the part of its
introduction to deal with the broad problem whereby an act of Con-
gress can presume a jurisdiction based on the inference that much
medial material is going to go into interstate commerce and therefore,
work product of those engaged in the media industry and indeed,
documents secured by them on which work product may ultimately
develop.
All may be a part of an interstate commerce service or function.
Thus the legislation before us tries to create an area in which Congress
may be able to act with universal application and create a protection
that even the State and local law enforcement officers would have to
offer, something that could not be done unless there is this interstate
commerce inference relative to those engaged in the media function.
This is my concept of the basic difference between the protection to
be afforded to the innocent third party generally which might require
State action to have any real legal constitutional application as
distinguished from a protection, which may be available to the media
because of its interstate commerce function.
Now with that explanation, I want to address one question to you
that I don't think your comments directly relate to. There are two
different classifications proposed by this act. One is the protection
to be afforded work product. I assume that means your notes or tapes
that you may have prepared for later use if desirable, based on docu-
ments or information procured. Then there are documents other than
work products, photographs, and that sort of thing, such as the
Stanford Daily situation.
Do you see this as a valid distinction? That your work product,
your notes, what you yourself have produced, might have a higher
privilege or protection than the documents which your vehicles may
have produced?
Mr. DAVIS. Yes. I think we support the distinction, but it raises
the Spector of protection for a search warrant to be issued for a non-
work-product item that is in the building where the work-product
item exists.
But we appreciate the distinction and accept it. It still opens the
door some.
Mr. GUDGER. Do you conceive that work product should be less
readily available or four exceptions should apply to work product
than would apply to the documents which may have been?
Mr. DAVIS. Definitely. It is hard to conceive of material that
would be construed as a nonwork product. Quite often it would be
something sent to us from outside, not something we have developed
on our own.
And so there won't be many instances where the nonwork product
is involved on a daily basis. But it still-it opens the door for a search
warrant. And I would hope in those instances the subpena would be
the preferable route to take.
Mr. GUDGER. Now you are aware that your comments were refer-
able to probable cause as opposed to reason to believe. That the in-
stance where there is probable cause to believe that the person subject
to search is involved in the criminal activities for which the search
is undergoing-you realize that probable cause there would have a
direct legal meaning and the proof of this exception would rely upon
the same form of proof upon which warrant could issue against the
offender.
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Do you feel that is a valid classification?
Mr. DAVIS. We don't like the reason-to-believe applications to
other than the exception you cite. We think that is weak. That the
first amendment, for example, is an issue that may be-particularly
when it relates to the question of invasion of a confidential area.
In our case the news department where we may have sources that
we are trying to protect. That, I think, in the history of the bill that was
supplied, it talks about using the same bases that Financial Privacy
Act of, 1978, for the formation of the reason-to-believe standard.
And we think that the first amendment issue may be a stronger issue
there in philosophy and probable cause should issue for it.
And as I said earlier, we are quite concerned about the magistrate
at the levels I think Mr. Sawyer addressed in the rural area, being
asked to differ in his mind on what reason to believe means.
Mere suspicion and the willingness with a friendly prosecutor or
police chief to issue on reason to believe, it would be much easier
than if a probable cause test were required.
Mr. GIDGER. I seem to see probable cause and reason to believe in
a little different light from the perception that you have.
I see probable cause to believe that a person has committed or is
in the process of committing a criminal offense, as requiring the proof
of all elements of that offense, at least substantial evidence sustaining
all items necessary to lead to conviction.
Reason to believe, on the other hand, where the reason to believe.
only relates to one particular fact or one particular circumstance and
not a pattern of facts or circumstances which is inherent in criminal,
law, and the probable cause definition; I don't know how probable.
cause would relate to probable cause to believe, that serious bodily
injury is to include or death is to ensue.
I am trying to see how you define probable cause to believe as a
criterion where the belief only relates as to the one question.
Is death or serious injury likely to ensue?
Mr. DAVIS. I'm not sure I can articulate well as a nonlawyer, the
differences that you ask of me.
I can only say that I think we need to establish the most rigid pos-
sible test for issuance of a search warrant in a news department or
newsroom where you have the potential abuse most often coming from
people who may be themselves affected by the material in the news
department.
So we thought the test of reason to believe to be a weaker test than
probable cause act. I'm not sure I can articulate more clearly than
that.
Mr. GUDGER. But you have no particular judicial decision or other
writings by any lawyers or groups which draws that distinction?
Mr. DAVIS. I don't know of any. This is a fairly new field for us.
Until Stanford we thought we had a constitutional protection.
Mr. GUDGER. Many did. Thank you very much. My apologies,
Mr. Chairman, I have taken more time.
Mr. DAVIS. Well, I wish I could be more clear. And if I can come up
with anything, I will provide it to you.
Mr. GIIDGER. Thank you.
Mr. KASTENMEIER. Thank you, Mr. Davis, for your appearance
this morning.
Next I would like to invite forward the individual who has been a
witness many times before this committee and other committees of
 Approved For Release 2007/05/23: CIA-RDP85-000038000300040017-9
Congress, and is indeed welcome back, and it is of course, John Shat-
tuck, Washington director of American Civil Liberties Union.
Mr. Shattuck?
TESTIMONY OF JOHN H. F. SHATTUCK, WASHINGTON DIRECTOR,
AMERICAN CIVIL LIBERTIES UNION
Mr. SHATTUCK. Thank you, Mr. Chairman and members of the
committee.
I am very pleased to appear here this morning on a subject of great
importance to the American Civil Liberties Union and especially to
appear before your subcommittee, this subcommittee which has such
a long and distinquished record of involving itself in legislation to
protect civil liberties.
. And let me just start by congratulating you, Mr. Chairman and the
committee, on the overwhelming passage yesterday of H. R. 10, a very
important bill supported by the American Civil Liberties Union, which
would protect the rights of institutionalized persons.
We are very pleased to have been a part of floor support on that bill.
I have submitted, Mr. Chairman, a lengthy statement for the re-
cord, and I will summarize and cover part of it orally. Let me start by
trying to put
Mr. KASTENMEIER. Without Objection, your statement will bs re-
'ceived and made part of the record. It is an 18-page statement in-
cluding the appendix.
[The prepared statement of Mr. Shattuck follows:]
STATEMENT OF JOHN H. F. SHATTUCK, DIRECTOR, AMERICAN CIVIL LIBERTIES
UNION, WASHINGTON OFFICE
Mr. Chairman: I welcome this opportunity to appear before your subcommittee
on an issue of vital concern to the American Civil Liberties Union. The ACLU is
a nationwide, nonpartisan organization of approximately 200,000 members
dedicated to protecting the advancing individual rights guaranteed by the Con-
.stitution.
For many years the ACLU has worked in Congress and in the courts to secure
-the right of privacy under the Constitution. In recent years we have focused our
.attention increasingly on the threat to privacy posed by broad government access
to private records. With the tremendous growth of recordkeeping and the wide
exchange of personal information between private institutions and government
agencies, the privacy of individuals is rapidly diminishing. It is not surprising
that a recent nationwide Harris poll showed that 74 percent of the American
public believes that the United States is "very close" or "somewhat close" to
being an Orwellian society "in which the government knows almost everything
about everyone." On the other hand, 67 percent of the public believes that "new
laws could go a long way to help preserve our privacy." More specifically, an
overwhelming 91 percent believe that a major reason for the erosion of privacy
is the unregulated flow of private information from the files of third party record-
holders-such as banks, insurance companies, private employers and credit
.card companies-and that the best way to solve this problem would be to pro-
hibit recordholders from disclosing personal information without the permission'
of those to whom it pertains.
The Impact of Stanford Daily
This is the context in which the Supreme Court's decision last year in Zurcher v.
Stanford Daily, 436 U.S. 547 (1978) must be viewed. In Stanford Daily the Court
struck a devastating blow at three major aspects of the right to privacy. First, it
removed all privacy protection from the premises or files of persons not suspected
of crimes and opened them to surprise searches by the police. Second, it shattered
most people's reasonable expectation that the personal information they provide
to doctors, hospitals, lawyers, journalists, insurance companies, banks and other
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yo~iyyyyyyC Ir
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"third party recordholdels" with whom they have communicated will generally
remain confidential. And third, because the Stanford Daily case involved a police
search of the offices of a newspaper, the decision severely undermined the First
Amendment protection of the newsgathering process and chilled the willingness
of persons who criticize the government or are under its scrutiny to become news
sources.
Unfortunately, the Stanford Daily decision is only another step-although the
most dangerous and far-reaching one to date-in a series of recent Supreme Court
decisions removing most privacy protections from personal records and informa-
tion. Three years ago for example, the Court ruled that a person has no legitimate
privacy expectation regarding his or her bank records, on the ground that the
records belong to the bank and a person voluntarily discloses certain information
in opening an account and accepts the risk of disclosure. United States v. Miller,
425 U.S. 435 (1976).
In the same term, the Court upheld a search warrant which in addition to
authorizing the unannounced seizure of specific papers, also authorized the
sweeping and potentially boundless seizure of "other fruits, instrumentalities,
and evidence of crime at this [time] unknown." Andresen v. Maryland, 427 U.S.
463, 479-80 (1976).
Several decisions in the last recent Supreme Court term have further under-
mined the privacy rights of individuals. The use of pen registers, which record
the numbers dialed on targeted telephones, was held not to be "interception" of
communications governed by the warrant procedures of Title III of the Omnibus
Crime Control and Safe Streets Act of 1968. United States v. New York Telephone
Co., U.S. (1977). In another decision, the Court ruled that law
enforcement officials need not "minimize" the wiretap interception of private
conversations under a court order if the factors of their investigation make it
"reasonable" to listen to everything. Scott v. United States, U.S.
(1978). The Court also refused to revie a lower court ruling upholding an FBI
search of the premise of the Church of Scientology in Washington, based on a
warrant authorizing a search for evidence "as yet unknown." Church of Scientology
v. United States 572 F. 2d 321 (D.C. Cir. 1977), cert denied, 46 LW 3886
(March 20, 1978j. Finally, several weeks ago the Court upheld an FBI break-in
conducted without a warrant for the purpose of installing a court-ordered electronic
eavesdropping device, despite the clear absence of statutory authority permitting
such an entry. United States v. Dalia, U.S. (1979).
The result of this disturbing Supreme Court trend is that the notice and spec-
ificity requirements of the Fourth Amendment have been all but abandoned in
searches for private information. Unless this trend is reversed by Congress, the
police can arrive unannounced at the premises of an innocent third party to search
for information "as yet unknown" to the officers or investigators themselves. The
resulting intrusion into personal privacy and disruption of journalistic, profes-
sional and business relationships will be staggering.
General Warrants to Search for Information
The Stanford Daily decision goes far toward authorizing the kind of "general
warrants" that the Fourth Amendment was aimed at prohibiting. This aspect of
the decision is in part an outgrowth of the Supreme Court's 1967 decision in
Warden v. Hayden, 387 U.S. 294 (1967), which overruled the "mere evidence"
rule. That rule had restricted all unannounced searches authorized by warrant to
contraband and the fruits or instrumentalities of crime. In cases before 1967, the
Court had stressed the distinction between searches for specific evidence in a
specific location, and searches "exploratory and general and made solely to find
evidence of respondents' guilt to the alleged . crime." United States v.
Lefkowitz, 285 U.S. 452 (1932). The "mere evidence" rule adhered to before 1967
reflected a strong judicial repugnance to the despised "general warrant," used
by English authorities before the Revolution to search at random for incriminating
evidence in possession of the colonists. Entick v. Carrington, 19 Howell St. Tr. 1029
(1765).
Although the majority opinion in Stanford Daily claims to follow Warden v:
Hayden, in fact it goes far beyond the earlier decision and virtually restores the
validity of general warrants. Indeed, the Court in Warden clearly was not con-
templating unlimited surprise searches of innocent third parties. In that case,
police officers who were informed that a suspect in an armed robbery had entered
his house five minutes before they arrived, began to search for the man and the
weapons used in the crime. During the search of his home, items of clothing were
seized, along with other items including weapons and ammunition. The Court
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ruled that the "exigent circumstances" which justified entry and search of the
house in "hot pursuit" without a warrant, also justified the seizure of the articles
prior to or immediately contemporaneous with the suspect's arrest, as part of an
effort to find a suspected felon. The Court stated that since the officers knew that
the suspect was armed, and were looking for weapons when they found the
clothing, the seizure of the clothing was justified.
It is clear that the "exigent circumstances" justifying the search of Hayden's
home were not present in the innocent third party search authorized by the
Stanford Daily decision. The search by California police of newspaper offices for
photographs of a demonstration three days following the event certainly did not
involve the "hot pursuit" of a criminal suspect. The staff of the newspaper were
suspected of no criminal activity in connection with the demonstration. In short,
nothing in the Hayden decision even remotely suggests that the Supreme Court
was inviting the police to ignore the usual subpoena process-including prior
notice and an opportunity to contest-to obtain documentary materials from
Innocent parties.
Privacy is disturbed far more by a search for documentary evidence than for
contraband, fruits, or instrumentalities of crime. A search for contraband or
instrumentalities is generally based on a specific description of the weapon,
narcotic, or other item to be seized. Even a search for a weapon "as yet unknown"
would not be offensive if there were probable cause that a weapon was located on
the premises to be searched, since the searching officer's life may be endangered. An
-.unannounced search for evidentiary materials, however, is justified by no such
,danger, and allows a wide-ranging intrusion into many areas of a home or office.
A search for mere documentary evidence may involve the rifling of filing cabinets,
,desks, and even waste baskets, affording the police an opportunity to read notes
and correspondence totally unrelated to the crime under investigation. Since
virtually any document could contain evidentiary material relevant to an investi-
gation, such a search is potentially boundless.
The impact of such a sweeping power to rummage through private records will
be severe. The spectre of a surprise search will chill both freedom of the press and
freedom of association. News sources cannot be assured of protection if a reporter's
notes can be seized without notice by the police. Patients and clients will think
twice before they provide personal information to doctors, psychiatrists and
lawyers. Prospective contributors to and members of controversial organizations
will refrain from participating if they cannot be sure that their lawful activities
will not be investigated by government agents rummaging through organizational
records.
It is precisely for these reasons that the Fourth Amendment originally did not
include private records among the "things" that could be seized with a warrant.
In the famous English decision which laid the groundwork for the Amendment,
Entick v. Carrington, supra, Lord Camden observed that:
Papers are the owner's goods and chattels. They are his dearest property,
and are so far from enduring a seizure that they will hardly bear an inspection.
[O]ur law has provided no paper-search. . . to help forward a conviction.
This observation has echoed through the history of the Fourth Amendment. In
Stanford v. Texas, 379 U.S. 476 (1965), for example, Justice Stewart observed in
his opinion for the Court that a search of private records "must be awarded the
most scrupulous exactitude" because it involves core First Amendment as well as
Fourth Amendment values. In that case the Court invalidated a warrant author-
izing the seizure of "any books, records, pamphlets, cards, receipts, lists, memo-
randa, pictures, recordings or any written instruments showing that a person or
organization is violating or has violated" a Texas statute regulating certain
Communist Party activities. In 1965 the Supreme Court had no difficulty in
characterizing this authorization as a "general warrant". In the wake of Stanford
Daily, the outcome might be different.
The Vulnerability of Institutional and Professional Records
Apart from the greater intrusiveness of unannounced third party searches for
information than searches for contraband or instrumentalities, Stanford Daily
has., for the first time, made vulnerable to search a wide range of institutional and
pmfessional records. As Justice Stevens observed in his lucid dissent:
Just as the witnesses who participate in an investigation or a trial far out-
number the defendants, the person or persons who possess evidence that may
help to identify an offender, or explain an aspect of a criminal transaction,
far outnumber those who have custody of weapons or plunder. Countless law
;abiding citizens-doctors, lawyers, merchants, customers, bystanders-may
have documents in their possession that relate to an ongoing investigation.
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The consequences of subjecting this large category of persons to announced
police searches are extremely serious. [436 U.S. at 588.1
Let us look at the practical impact of this vast expansion of the number of
institutions and people whose files are now subject to unannounced searches. The
following example was set out in the Petition for Rehearing in Stanford Daily,
which the Court denied without comment:
A lawyer's file contains evidence relevant to a criminal investigation of
his client. Since the Court has already indicated that common law or statutory
privileges "are largely irrelevant to determining the legality of a search
warrant . under the Fourth Amendment" [56 L.Ed. 2d at 5431, the police
could obtain a warrant authorizing an unannounced search of the attorney's
files. In executing the warrant, the police could follow the same procedure
that was used in Stanford Daily and search through the lawyer's file room and
the files on all of his clients in order to obtain the documents they are seeking.
In order to conduct this kind of search the police need not show a magistrate
that the files would be destroyed or hidden, or that the lawyer or the suspect
would flee if prior notice were given by way of a subpoena.
There is no other way to characterize this hypothetical situation but as a
"general search". Nor is there any doubt that such a broad search-justified not
on any exigent circumstances but solely on the convenience of the police-would
pass muster under Stanford Daily. Indeed, there are several examples of actual
"third party" searches conducted after the search in Stanford Daily which are
,even more disturbing than the hypothetical:
According to Jerome B. Falk, counsel for Stanford Daily, a case in San Diego
involved a criminal defendant's father who found an incriminating document and
,delivered it to the defendant's lawyer. The prosecutor asked the lawyer to produce
the document voluntarily, but the lawyer declined to do so without a subpoena.
Instead of issuing a subpoena the police obtained a search warrant and searched
the entire law office, including many files wholly irrelevant to their investigation.
In 1973, the Santa Clara police were investigating a sex offense and wanted to
-examine the psychiatric records of the victim, who had sought help at the Stan-
ford University Psychiatric Clinic. The police had no reason to believe that the
psychiatrist would disregard a subpoena or destroy evidence. Nevertheless, they
obtained a warrant to search the files of the clinic. In the process of an unsuccessful
effort to locate the records, they rifled all the patients' files, seeing at least the
names of each person who had sought help there.
In the last two years at least three news organizations have been served with
broad search warrants.
In April 1978 a warrant served by a sheriff in Helena, Montana on the Associ-
ated Press was quashed at the last minute when the police were at the newsroom.
In December 1977 a warrant was issued to search the premises of three San
Francisco television stations for filmclips of a political demonstration.
In September 1977 a Providence, Rhode Island television station was searched
pursuant to a warrant for the film of a picket line.
These examples show that the impact of Stanford Daily destroys the right of
privacy in three major and equally important ways:
1. It makes vulnerable to general and unannounced search the files of third
party recordholders like hospitals, doctors, lawyers and insurance companies
who are not suspected of crimes.
2. It eliminates the reasonable expectation by patients, clients and others who
seek professional or institutional advice or benefits that the information they
provide about themselves will remain confidential.
3. It undermines the constitutional protection of news gathering by permitting
general searches of newsrooms and the files and notes of journalists.
Framing The Appropriate Legislative Response
If ever a case could be made for overturning a Supreme Court decision by
legislation, this is it. Since all three aspects of the Stanford Daily decision are
equally important, Congress should address itself to each one. To do less is to ignore
the public's demand for broad privacy protection. This was the position taken by
Vice President Mondale shortly after Stanford Daily came down last June: "When
serious commentators point out that every citizen's right to privacy may now be in
jeopardy, we all have to listen."
In framing the appropriate legislative response, it is necessary to balance the
three major privacy interests I have discussed against the legitimate interests
of law enforcement. In light of the longstanding prohibition against information
:searches for "mere evidence," any claim that the police should be free to conduct
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unannounced third party searches for records should be viewed skeptically. Before
1967 such searches were flatly illegal and, as we have seen, even after 1967, a search
for "mere evidence" could only be directed at criminal suspects under "exigent
circumstances." Moreover, there is no indication that the Supreme Court in
Warden v. Hayden was sanctioning searches of personal records. It is hardly com-
pelling, therefore, for the police to argue that they must now be permitted to en-
gage in third party record searches which they were barred from conducting before
Stanford Daily. There are virtually no reported decisions prior to Stanford Daily
upholding the right of the police to conduct unannounced searches of records in
the custody of innocent third parties. Since law enforcement managed to function
for two centuries in this country without searching third parties, it is difficult to
perceive any need for the police to start doing so now. Subpoenas have tradition-
ally been regarded as entirely sufficient for obtaining evidence from law-abiding
citizens.
The appropriate legislative response to the Stanford Daily decision is a return
to the subpoena-first rule which governed third-party searches until 1978. As the
dissenters in Stanford Daily pointed out, "[a] search, unlike a subpoena, will
lead to the needless exposure of confidential information completely unrelated
to the purpose of the investigation" [436 U.S. at 573]. A subpoena, on the other
hand, gives an innocent person in possession of sensitive information notice and
the opportunity to produce the precise information requested or to seek to narrow
the scope of the request. This is the most effective way to insure that "police
officers [do not] ransack files . . . , reading each and every document until they
have the one named in the warrant" [Id.].1
There is an even more compelling reason to require a subpoena-first rule to be
used for third party records. Congress is currently beginning to consider a variety
of legislative proposals to implement the recommendations of the President s
Protection Study Commission. At the core of these recommendations is a proposal
to limit government access to third party records by requiring that record sub-
jects be notified of and given the opportunity to contest any government effort to
obtain information about them for banks, hospitals, insurance companies or other
third parties. Except in very narrow circumstances, this means that access could
only be by subpoena, summons or other legal process served not only on the
recordholder but on the record subject as well. This proposal has already been
enacted into legislation covering certain financial records (the Financial Privacy
Act of 1978), and its extension to medical, credit and insurance records, supported
by the Carter Administration, is being considered by the 96th Congress. A warrant
procedure authorizing unannounced searches of third party records would under-
mine this entire legislative effort disappointing the overwhelming public majority
which supports it, according to the recent Harris poll.
Even under a subpoena-first rule, of course, there will be circumstances in which
the issuance of a search warrant for records would ordinarily be justified. These
are when the target of the search is (a) a criminal suspect, (b) in possession of
contraband or the fruits or instrumentalities of a crime, or (c) likely to destroy or
remove evidence if notice is given. These are the "exigent circumstances" under
which a search for "mere evidence" would be permitted by the rule in Warden v.
Hayden, and they should be incorporated, with appropriate modifications, into
the subpoena-first legislation which we are urging you to adopt. A variety of bills
have been introduced to achieve this result, and we endorse the general thrust of
each of them. See H.R. 1373, introduced by Mr. Gudger; H.R. 1305, introduced
by Mr. Sawyer; H.R. 368, introduced by Mr. Green; H.R. 322, introduced by
Mr. Fish; H.R. 1437, introduced by Mr. Quayle; and H.R. 380, introduced by
Mr. Guyer.
The Justice Department Proposal (H. R. 3486)
The Justice Department has drafted an imaginative proposal to protect "First
Amendment materials" from the consequences of Stanford Daily. We urge the
Subcommittee to broaden the proposal to cover all third party materials. First,
however, I would like to draw your attention to two ways in which H.R. 3486
improves upon the bills listed above.
In one respect, H.R. 3486 provides ever greater protection for documentary
materials compiled in connection with First Amendment publishing activities than
I In his dissenting opinion, Justice Stewart points out inevitable privacy invasion resulting from the
execution of a warrant authorizing a document search:' In order to find a particular document, no matter
how specifically it is identified in the warrant, the police will have to search every place where it might be-
including, presumably, every file in the office-and to examine each document to see if it is the correct one.
I thus fail to see how the Fourth Amendment [warrant procedures] would provide an effective limit to
these searches 1436 U.S. at 573 n. 7]."
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do the proposals discussed above for protecting the records held by third parties
not engaged in such activities. Thus, under H.R. 3486, the "work-product" of a
journalist or any other person preparing information for public dissemination
could not be obtanied by a search warrant under any circumstance short of probable
cause to believe that the person is engaged in crime. We strongly endorse this key
safeguard of First Amendment publishing activities.
We also endorse the broad jurisdictional scope of H.R. 3486, which would
cover state and local as well as federal law enforcement officials.' Stanford Daily
involved a local police search, and as we have seen, the temptation to conduct
surprise searches of newsrooms appears to be greatest at that level. We agree with
the Justice Department that Congress has the power to restrict state and local
police activities in order to safeguard important privacy rights. Congressional
Power in this area is derived both from the Commerce Clause of the Constitution
which authorizes federal protection of interstate communication and business, and
under the Enabling Clause (Section 5) of the Fourteenth Amendment which
authorizes "appropriate legislation" to enforce the Due Process Clause against
state action. A memorandum of law supporting this conclusion is attached as an
appendix to my testimony.
Clearly, the Justice Department is to be commended for this imaginative effort
to remove one of the three dangerous ways in which the right of privacy has been
undermined by Stanford Daily. We support the protection in H.R. 3486 of
journalists and others engaged in First Amendment publishing activities. Never-
theless, we have grave reservations about acting to protect journalists without
also returning to the traditional subpoena-first rule for other third parties not
suspected of crime. For all the reasons outlined above, we urge the Subcommittee
to act decisively to restore the privacy rights of all the victims of Stanford Daily.
Not to do so would be to sanctiona major erosion of privacy.
Finally, there are several features of H.R. 3486 which we believe require amend-
ment in order to avoid creating more problems than the bill is intended to resolve.
First, the criminal conduct expection in Sections 2(a) and 2(b) would permit
search warrants for the receipt or possession of information relating "to the na-
tional defense, classified information, or restricted data." This is an extremely
broad category of information, and would appear to cover such controversial
materials as the Pentagon Papers, the Glomar Explorer story, or any other
arguably classified information being prepared for publication. Surprise searches
of newsrooms should not be authorized for information whose publication is
protected by the First Amendment.
Whether or not the espionage laws can constitutionally be used to prosecute a
person who publishes information pertaining to the national defense-and we
strongly maintain that they cannot-the surprise search of a newsroom to seize.
materials being prepared for publication would be a de facto prior restraint wholly
inconsistent with the First Amendment. Indeed, the authorization of such a
search by Congress would be worse than the sanctioning of an effort by the gov-
ernment to obtain a judicial order barring the publication of information on na-
tional defense grounds.
A second troublesome feature of H.R. 3486 is its permissive approach to searches
by "non-work product" materials, In addition to the broad classified information
exception which applies to both "work product" and "non-work product" ma-
terials, documents other than work product may be seized pursuant to Section
2 (b) (2) under a law standard of "reason to believe" that death or serious bodily
injury can thereby be prevented. While we recognize the importance of this ex-
ception, we submit that it should be covered by the same "probable cause"
standard applicable to the criminal conduct exception. We are also concerned
that the "destruction exception" applicable to nonwork product materials under
Section 2(b)(3) could provide the basis for newsroom searches of all types of ma-
terials whenever a media company has a policy of routinely destroying documents
after publication. This latter problem is magnified by the fact that newsrooms
are unlikely to separate "work product" from "non-work product" materials,
so that any search that is conducted under the proposed statute is likely to
uncover both.
Another disturbing provision permits a search warrant to be issued for non-
work product materials after "all appellate remedies have been exhausted" or
when "delay . . would threaten the interests of justice." This would permit the
police to seize documents whenever it is dealing with a recalcitrant journalist.
2 Ii.R. 1373, H.R. 1305 and H.R. 322 apply only at the Federal level, although they cover all third party
records.
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46
We urge this Subcommittee to address each of these problem areas in H.R.
3486 and to combine the good features of the Administration's bill with the broader
protections for all third parties contained in H.R. 322, H.R. 368, H.R. 380,H.R.
1305, H.R. 1373 and H.R. 1437.
Congress should act swiftly on legislation to protect all persons against the
Supreme Court's intolerable erosion of privacy protections in the Stanford Daily
decision. The ACLU is encouraged by the broad bi-partisan support given legis-
lative efforts in this area, and looks forward to working closely with this Sub-
committee to develop a strong and effective response to a serious constitutional
problem.
Thank you.
APPENDIX
AMERICAN CIVIL LIBERTIES UNION,
Washington, D.C., June 16, 1978.
Re congressional power to restrict third-party searches by State and local officials.
To: Interested parties.
From: American Civil Liberties Union, Legislative Office.
This memorandum responds to questions raised regarding the constitutionality
of Congressional legislation restricting third-party searches by state and local
officials, as well as by federal officers, in response to the Supreme Court's recent
decision in Zurcher v. Stanford Daily. 46 LW 4546 (May 31, 1978). The bill in-
troduced by Senator Bayh, S. 3164, as well as other bills (S. 3162-Senator Dole
and H.R. 12952-Representative Drinan), reach third-party searches by "any
person" acting under color of law, thereby encompassing state and local officials.
We conclude that congressional power to include state and local officials within
such legislation exists under both the Commerce Clause of the Constitution (Art. I,
Sec. 8, cl. 3) and the Enabling Clause of the Fourteenth Amendment (14th Amend-
ment, Sec. 5). We also note that precedent for congressional legislation regulating
state and local police practices is found in the enactment of Title III of the
Omnibus Crime Control and Safe Streets Act of 1968,1 which restricts electronic.
surveillance by state and local, as well as by federal officials.
"It is established beyond peradventure that the Commerce Clause of Article I
.of the Constitution is a grant of plenary authority to Congress." 2 It is also well
settled that "(e) ven activity that is purely intrastate in character may be regulated
by Congress where the activity combined with like conduct by others similarly
situated, affects commerce among the States . . . ." 3 Since S. 3164 protects the
freedom of the press as well as the rights of other individuals, the bill is sustainable
under the. broad sweep of the Commerce Clause as a regulation affecting interstate
communication.4 Since the bill also secures the offices and business premises of
other individuals,5 its protection of perhaps wholly intrastate activity will surely
have a significant impact on interstate commerce in other areas besides com-
munications.
The recent case of National League of Cities v. Usery,e in which the Supreme
Court invalidated the extension of the minimum wage and maximum hour pro-
118 U.S.C. ?? 2510-2520.
8 National League of Cities v. Usery, 426 U.S. 833, 840 (1976).
8 Fry v. United States, 421 U.S. 542, 547 (1975).
4 The issue of Congressional power to protect the news media arose in a context similar to the current
debate 6 years ago when considerable interest for a newsmen's "shield" bill followed the Supreme Court's
decision in Branzburg v. Hayes, 408 U.S. 665 (1972). The issue was extensively researched and briefed by
the Congressional Research Service of the Library of Congress, which this memorandum relies on heavily.
See generally "Newsmen's Privilege: A Testimonial Privilege for Representatives of the News Media,"
at 23-25, Congressional Research Service, Library of Congress, 76-116A, revised June 16, 1976.
8 See Zurcher v. Stanford Daily, 46 LW 4546, 4554 (May 31, 1978) (Stevens, J., dissenting).
6 426 U.S. 833 (1976).
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visions of the Fair Labor Standards Act to employees of states and their political
-subdivisions, is distinguishable from the regulation of police practices embodied
in S. 3164. In National League, the Court stressed that these wage and hour
"determinations are `functions essential to separate and independent existence',
-so that Congress may not abrogate the states' otherwise plenary authority to
make them".7 The Court recognized that "there are (some) attributes of sovereignty
attaching to every state government which may not be impaired by Congress ..." 8
The "attributes of sovereignty" referred to in National League involve fiscal
.determinations which have historically been left to the judgment of state and
local officials. In deferring to the maximum-grant limitation set by Maryland
welfare officials in Dandridge v. Williams,9 the Court stated that "the starting
point of the statutory analysis must be a recognition that the federal law gives
each State great latitude in dispensing its available funds". The protections against
intrusive and unnecessary third-party searches embodied in the proposed legisla-
tion, however, do not involve this deference to fiscal determinations. The protec-
tions involve constitutional concerns for privacy and personal security, based on
.a Congressional finding that the legislation's provisions will enhance the Fourth
Amendment's proscription of unreasonable searches and seizures. Uniform national
police procedures restricting third-party searches do not impair the "independent
existence" of states and localities as did the budgetary strain struck down in
National League. Furthermore, state and local police forces currently must follow
many uniform procedures, including restrictions on electronic surveillance em-
bodied in the Omnibus Crime Control and Safe Streets Act of 1968,10 discussed
infra at 7.
The Enabling Clause (? 5) of the 14th Amendment by definition allows Congress
to reach state and local officials. The Amendment has been termed "the center-
piece" of "the basic alteration in our federal system wrought in the Reconstruction
era"." The clause gives Congress the power to enforce the provisions of the 14th
Amendment "by appropriate legislation". In Katzenbach v. Morgan," the Supreme
Court ruled that:
By including ? 5 the draftsmen sought to grant to Congress, by a specific
provision applicable to the Fourteenth Amendment, the same broad powers
expressed in the Necessary and Proper Clause, Art. I ? 8, cl. 18.
Accordingly, Katzenbach held that the formulation of the reach of the Necessary
and Proper Clause established in McCulloch v. Maryland was the measure of what
constitutes "appropriate legislation" under ? 5 of the 14th Amendment:
Let the end be legitimate, let it be within the scope of the constitution, and
all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consistent with the letter and spirit of the
constitution, are constitutional. 13
Applying the M'Culloch standard, Katzenbach sustained the constitutionality
of ? 4(e) of the Voting Rights Act of 1965 as a valid exercise of Congressional
power under the Enabling Clause of the 14th Amendment. In so doing, the Court
explicitly held that an independent judicial determination of the unconstitutionality
of the state law precluded by Congress in that Act was not required to uphold the
Congressional enactment. Similarly, the fact that a third-party search may not in
each instance make out a violation of the 14th Amendment does not render Con-
gress powerless to extend the legislation to state officials. The determination by
Congress that the restrictions on third-party searches embodied in the proposed
legislation will enhance the purposes of the Fourth and First Amendments, made
applicable to the states by the 14th Amendment, is sufficient to sustain the legis-
lation under Katzenbach v. Morgan. Section 2 of Senator Bayh's S. 3164, the
Citizen's Privacy Protection Amendment of 1978, explicitly states that the bill's
purposes is "to assure the rights of citizens under the 4th and 14th Amendments
7 Id. at 845-46 (citations omitted).
8 3d. at 845.
8 397 U.S. 471, 478 (1970).
10 Supra note 1.
11 Mitchum v. Foster, 407 U.S. 225, 238-39 (1972).
13 384 U.S. 641, 650 (1966).
13 4 Wheat. 316, 321, 4 L. Ed. 579, 605 (1819).
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of the Constitution and to protect the freedom of the press under the 1st Amend-
ment"," and thereby rests on valid constitutional grounds under the Katzenbach
decision.
Several cases make clear that the broad Congressional authority to regulate
state operations under ? 5 of the 14th Amendment was not diminished by the
National League opinion, which involved only regulations pursuant to the Com-
merce Clause which threatened the states' "independent existence." In that case,
the Court explicitly distinguished ? 5 of the 14th Amendment (along with the
spending power) as a source of Congressional authority that might support
intrusions into state operations that would be impermissible if grounded on the
Commerce Clause.15 Four days later, in Fitzpatrick v. Bitzer,16 the Court sustained
the application of the remedial provisions of Title VII to state governments. In so
doing, the Court expressly noted that the challenged extension of federal regula-
tion to the states was an exercise of Congressional power under ? 5 of the 14th
Amendment, while the extension struck down in National League was not.17 The
Court stated:
When Congress acts pursuant to ? 5, not only is it exercising legislative
authority that is plenary within the terms of the constitutional grant, it is
exercising that authority under one section of a constitutional amendment
whose other sections by their own terms embody limitations on state
authority.18
In the recent case of Monell v. Department of Social Services of the City of New
York,19 the Court stated that "(t)he Tenth Amendment's reservation of non-
delegated powers to the states is not implicated by a federal-court judgment
enforcing the express prohibitions of unlawful state conduct enacted by the
Fourteenth Amendment." The Court therefore concluded that National League
was irrelevant to the constitutional issues involved in the Monell case, the former
being limited to the Tenth Amendment's reservation of nondelegated powers to
the states. The protections against third-party searches embodied in S. 3164
involve constitutional determinations made applicable to the states through the
14th Amendment as in Monell, and do not involve the reservation of nondelegated
powers as in National League.
The case of Oregon v. Mitchell,20 which held that Congress could lower the
voting age to 18 in federal elections but not in state elections, did not overrule
Katzenbach, and is distinguishable from the constitutional issues involved in
S. 3164.21 The Oregon Court emphasized the states' explicit power in the Con-
stitution to regulate voting qualifications in their own elections. Art. I, ? 2, of
the constitution provides that in determining the number of a state's representa-
tives, only three-fifths of the slave population should be counted, and that
.qualifications of voters for those representatives should be the same as those
established by the states for electors of the most numerous branch of their
respective legislatures, Article I, ? 4 provides that, subject to Congressional
veto, the states shall prescribe the times, places, and manner of electing repre-
sentatives.22 The states are nowhere in the Constitution given explicit authoriza-
tion to regulate police practices in the fashion of S. 3164. Moreover, police
procedures have historically been uniformly regulated on a national basis ,by
Congress.23
14 S. 3164, Sec. 2, 95th Congress, 2d session (1978). The Issue of Congress' power to reach the States arose
with respect to the coverage of title VII of the Civil Rights Act of 1964 by virtue of the Equal Employment
Court in the 1977 case of Dothard constitutionality Rawlinsan, 433 the U1972 Act was extensively briefed .S. 321 (1977), though the Supreme before Court the did not
rule on the issue since it was neither raised in the court below nor presented in the jurisdictional statement.
This memorandum draws extensively on the Brief for Appellees in that case, prepared by ACLU Legisla-.
tive Counsel Pamela S. Horowitz. See generally Brief for Appellees at 19-28, Dothard v. Rawlinson, 433 U.S.
821 (1977).
15 426 U.S. at 852, n. 17.
10 427 U.S. 445 (1976).
17 Id. at 453, n. 9.
18 Id. at 452.
10 46 LW 4569, 4578, n. 54 (June 6, 1978);
10 400 U.S. 112 (1970).
21 One commentator, Professor Lawrence H. Tribe, terms the Oregon decision "incomprehensible,'
since there were five separate opinions in the case, none commanding a majority. Four Justices concluded.
that Congress could lower the voting age in both Federal and State elections; four found no congressional
authority to reach either election. Justice Black, who announced the Court's judgment, was the only Justice
who found congressional power to regulate only Federal, but not State elections. L. Tribe, "American..
Constitutional Law" 266-67 (1978).
22 See 400 U.S. 155 (separate opinion of Harlan, J.):
98 See, e.g., 18 U.S.C. ?? 2510-2520 (Omnibus Crime Control and Safe Streets Act of 1968).
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PRECEDENT FOR CONGRESSIONAL REGULATION OF STATE POLICE PROCEDURES
Title III of the Omnibus Crime Control and Safe Streets Act of 1968,24 which
authorizes civil and criminal sanctions for the illegal electronic surveillance of a
citizen by "any person," is a valid precedent for congressional legislation regulating
state and local police practices. Several cases have recognized that the purpose of
Title III, like S. 3164, is to preserve individual privacy by setting uniform stand-
ards for the judicial authorization of wiretap searches for legitimate law enforce-
ment purposes 25 In United States v. Giordano,2? Justice White, also the author of
Zurcher v. Stanford Daily,27 wrote:
The purpose of the legislation, .. . was effectively to prohibit, on the pain
of criminal and civil penalties, all interceptions of oral and wire communica-
tions, except those specifically provided for in the act . . . The judge must
make certain findings before authorizing interceptions, including the existence
of probable cause. 28
The purpose of the legislation proposed by Senator Bayh and others is to pro-
hibit third-party searches unless a judge makes a finding of probable cause that
the persons in possession of the evidence sought may be involved in the crime
under investigation or would destroy the evidence.
EVIDENTIARY AND SUPREMACY CONCERNS
Since a constitutional basis for S. 3164's application to state officials exists,
any evidence seized in violation of the bill would be inadmissible in state as well
as in federal court proceedings. In Adams v. Maryland,29 the Supreme Court
upheld a federal statute proscribing the use as evidence in any court (including
state courts) of testimony given by witnesses in congressional inquiries. The
Court wrote that "since Congress in the legitimate exercise of its power enacts
`the Supreme Law of the Land', state courts are bound . even though it
affects their rules of practice".30 In the Omnibus Crime Act,31 Congress specifically
provided for the exclusion of illegally seized wiretaps in all proceedings:
Whenever any wire or oral communication has been intercepted, no part of
the contents of such communication and no evidence derived therefrom may be
received in evidence in any trial, . . . in or before any court, grand jury, . . . or
other authority of the United States, a State, or a political subdivision thereof
if the disclosure of that information would be in violation of this chapter.32
In the event of a conflict between the federal statute and a state law subse-
quently or previously enacted, the federal law would, by virtue of the Supremacy
Clause (Art. VI, el. 2) preempt the state law 33 There would appear to be nothing
to preclude the states from enacting even stronger safeguards than those embodied
in the Congressional legislation, though any state statute must at least encompass
those safeguards enacted by Comgress as "the Supreme Law of the Land".
CONCLUSION
The ACLU Legislative Office concludes that Congress possesses the constitu-
tional power to include state and local officials in legislation restricting third-
party searches. Cases limiting congressional power over the states are clearly
distinguishable from the constitutional issues involved in legislation to restrict
searches and seizures. Congress has regulated state and local police practices in
the past, and is not precluded from doing so in the search and seizure context.
You may proceed.
24 Id.
25 See, e.g., Application of U.S. Authorizing Interception of Wire Communications, 413 F. Supp. 1321
E.D. Pa. 1976); Carter v. State, 337 A.2d 415, 274 Md. 411 (1975).
2e 416 U.S. 505 (1974).
27 Supra, note 5.
28 416 U.S. at 514-515.
24 347 U.S. 179 (1954).
'? Id. at 183; see also, Ullman v. United States, 350 U.S. 422, 434-36 (1956).
sl Supra, notes 1, 32.
32 18 U.S.C. ? 2515 (emphasis added).
38 See Swift & Co. v. Wickham, 382 U.S. 111, 120 (1965); Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L. Ed. 23, 73
(1824); see also Jacobsen v. Massachusetts, 197 U.S. 11, 25 (1905), holding that a local regulation of official
practice, even if based on the acknowledged police powers of a State, must always yield in case of conflict
with the exercise by the general Government of any power it possesses under the Constitution, or with any
right which that instrument gives or secures.
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Mr. SHATTUCK. Let me start by trying to put in perspective the,
privacy issues which you're considering today in the context of the
specific legislative proposals before you.
In recent years there has been an explosion of the amount of personat
information that is collected by so-called third parties, such as banks,..
insurance companies, doctors, hospitals, law offices, and the-
Government.
This information is widely and increasingly disseminated and used:
to make judgments about people-judgments which in many in-
stances the people are prepared to have made about them.
Obviously if you are going to a doctor you want the doctor to judge-
whether or not you are sick. If you are applying for insurance you.
want to have your insurance application properly treated.
But you generally don't consider the information that you provide-
on these applications and to these third parties as widely available
to others. But in fact, what we see increasingly and I think this has-
been demonstrated by the work of this subcommittee and by the
Congress in general and by the courts, is the wide dissemination of
personal information collected by third parties outside the relation-
ship for which it is originally collected.
Now as this continues, I think the public is getting increasingly
concerned about it.
Two weeks ago a national poll conducted by the Lou Harris As-
sociates showed that 74 percent of the American public now thinks-
that we are near a so-called Orwellian society, where the Government
knows everything about everyone.
I don't know whether that is the case, but that's the way a lot of
people feel. On the other hand, the poll also showed that 67 percent
of the respondents thought it would strengthen their rights of privacy-
enormously for new legislation to be enacted.
And I think most important to the issues before this subcommittee,.
91 percent of the public in this Harris poll thinks that a key privacy-
protection would be to give notice and a chance for a person to be,
heard when there is an attempt by the Government to get access to.
records about that person in the hands of third parties, like banks,.
insurance companies, doctors, and employers.
Now this is the context in which I think that last year's Supreme..
Court decision in the Stanford Daily case should be seen. That decision
struck not one, but three major blows at the constitutional rights of"
privacy.
First, it removed all protections against surprise searches, un-
announced searches by the Government of the files and records of-
innocent third parties.
Second, it made the subjects of those records, the people whose,
records were collected by banks, insurance companies and the press,,
subject to indirect search, so that they couldn't do anything at all.
to protect the confidentiality of that information.
And third, because the case involved the search of a newsroom, it.
made the press particularly vulnerable to having confidential materials,.
like reporter's notes, seized at any time if the police think that infora--
tion would be useful.
Mr. KASTENMEIER. Mr. Shattuck, I regret to interrupt you at this,
point, but we do have a recorded vote on the floor which we_ must.
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attend to and since we are just getting into it, it probably would be
better that we go immediately and return promptly.
So that being the case, I would like to recess the committee for 10
minutes for us to take a vote and return. I beg your indulgence.
Mr. SHATTUCK. Thanks, Mr. Chairman.
[Recess.]
Mr. KASTENMEIER. The committee will come to order. When we
recessed Mr. Shattuck was in the early presentation of his testimony
and was, in fact, describing the three major aspects of the curtailment
of the right to privacy represented by' the Stanford Daily decision.
Mr. Shattuck?
Mr. SHATTUCK. Thanks, Mr. Chairman. Let me quickly review those
again. The decision would cut deeply into privacy in three ways. For
the very first time, at least in my research, by permitting searches of
purely innocent people, not suspected of any crimes.
Second, by eliminating any expectation of confidentiality that
people whose records are held by third parties might have.
And third, of course, as you have been exploring already this morn-
ing, by cutting deeply into the first amendment privacy of the press to
protect their sources and materials.
This decision was probably the worst in a long line of recent Supreme
Court cases which I have cited in my prepared statement that I think
it is fair to say have virtually abolished all constitutional protections.
for records and private information as far as Government searches are
concerned, except pursuant to a warrant, pursuant to the kind of-
search warrant that was issued in the Stanford Daily case.
So what we have, I think, following Stanford Daily and these other
decisions, is a return in many respects to the old concept of a general
warrant.
A general warrant, of course, was the concept out of which the
fourth amendment itself sprang. And the general warrant did permit
the crown officers who executed it during the colonial period to conduct
searches of people who were innocent and searches that would go to-
virtually any kind of information or documents or materials that they-
might have.
Now there are three key elements to the Stanford Daily search which
make it very much like the searches that are, in fact, general warrants.
First, we are dealing with innocent persons; second, the searches are
a complete surprise; and third, the police are permitted to rummage
through files and documents to find what they are looking for.
The Stanford Daily offices of course were searched for some 6 or 7
hours by the police who turned up all kinds of material in order to ob-
tain the photographs of the demonstration that they were looking for.
Before the Stanford Daily case, it wasy generally accepted that sub-
penas, not search warrants would be used to obtain documents and
private files from innocent people, and this would give the target of the
search notice of the fact that the search was going on and an oppor- -
tunity to contest.
The only circumstances prior to Stanford Daily which a subpena
would not be used, were where the person who had the materials that
were to be searched was in fact a criminal suspect, as was the case in
Warden v. Hayden, which was decision on which the Supreme Court
relied, and I think improperly relied, in its decision in Stanford Daily.
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The other exceptional circumstances are where there was evidence
that materials would be destroyed if notice were given or where the
materials were actually contraband or the fruits and instruments of a
crime.
But after Stanford Daily, all of these limitations. are gone. And in
practical terms, I think what this means is an extraordinary expansion
of the kinds of searches that can be conducted pursuant to warrant.
You have already heard about reporters and press searches, but
there are searches of patients and clients, searches of doctors' offices.
And I think that patients and clients of lawyers are going to be very
hesitant to divulge sensitive in formation about themselves if they can
be-the offices of the doctors or lawyers with whom they are dealing
can be searched.
I think contributors to controversial organizations will think twice
before making contributions if the files of those organizations can be
searched pursuant to warrant, without any kind of notice.
But I would like to go over in some detail with you for the record, I
think, the kinds of examples of the practical impact that this Stanford
.Daily decision will have.
On pages 8 and 9 of my testimony I have cited a number of examples.
The first one comes from the petition for rehearing on the Stanford
.Daily case and involves a hypothetical which turns out to be not that
hypothetical-lawyers' files which contain evidence relative to a
criminal investigation of the lawyers' client are subject to search.
And there would be no way for the police, in executing a warrant for
that search, to avoid searching through the files of the lawyer which
'didn't relate to the materials that were named in the warrant.
There are a number of other examples that are, in fact, actual cases
that have happened since the search in Stanford Daily was conducted.
In one case, cited on page 9 of the testimony, a San Diego case, the
father of a criminal defendant who found an incriminating document
and delivered it to the defendant's lawyer, apparently triggered a
search warrant by the prosecutor which went to the lawyer, and the
police searched the entire law office, even though they were simply
looking for the supposedly incriminating single document.
In another case, the Santa Clara police in 1973 were investigating a
sex offense and wanted to examine the psychiatric record of the victim
who had sought help at the Stanford University psychiatric clinic.
The police had no reason to believe that the psychiatrist himself
would destroy evidence, but they nonetheless obtained the search
warrant to search the entire psychiatric clinic of Stanford University,
hand in the process, of course, obtained names or went through the names
.of all the people who had obtained assistance from that clinic.
And then there are the three news organizations that were served
with broad search warrants after the Stanford Daily search was
conducted.
There are three other cases that I have not cited in my testimony
that just recently were brought to my attention. A search in July 1978
by the St. Paul, Minnesota Police Department of the law offices of an
attorney of a person who was under investigation for liquor law
,violations.
And the law office was searched-not the person. in question. And
that case is now on appeal before the Minnesota Supreme Court.
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53
And I think for the record I would like, Mr. Chairman, to submit the
appellate briefs and materials which I think would be of interest to
the subcommittee.
Mr. KASTENMEIER. Certainly.
[Information is presented in Appendix 1-B.]
Mr. SHATTUCK. There was recently another disturbing search of a
law office in. Los Angeles. A 60-person law firm, Kaplan, Livingston
and Berkowitz, in April of this year, April of 1979, were searched in
connection with a medical fraud investigation involving a client.
But again, there was an attempt by the police to search the files,
many of the files in that law office without giving notice to the law
firm.
Now the law firm made a challenge to the search and it was inter-
rupted in midcourse when the superior court judge issued a restraining
order barring the search from going forward.
And I think the judge's opinion on the restraining order is well
worth quoting, because I think he indicates how disturbing this kind
of search is.
The judge says, "If a search warrant of this kind can be upheld,
either a reckless attorney general or a corrupt judge can give the
power to go through offices. I see jackboots and armbands in this
search warrant," said Judge Jerry Pacht. of the Los Angeles Superior
Court.
And that case, interestingly enough, has been appealed by the
State attorney general in California. They are seeking to go forward
with the search on the ground that the California Attorney General's
Office now has a policy, an announced policy of conducting these kinds
of searches of lawyer's offices pursuant to a warrant in white collar
crime cases.
And they expressly rely on the decision in Stanford Daily in order
to conduct those searches, so we are really dealing with a very
immediate and practical problem.
I mentioned the cases of lawyers and doctors. Obviously there are
many. other potential subjects and there probably are searches of
subjects right now going on in the third party search area.
So if ever there was a case to be made for overturning a Supreme
Court decision by legislation, this is it.
I think since all three of the aspects of the Stanford Daily decision
are equally important, I would urge Congress to address each one of
them, because I think to do anything less in light of the kinds of abuses
that I am outlining, is simply to sanction the invasion of privacy
by not covering all three parts in as practical-a way as possible.
I would like to remind you for the record this was the position the
Vice President took shortly after the Stanford Daily decision came by.
He was quoted as saying, "Every citizen's right to privacy may now
be in jeopardy. We all have to listen."
The proper response to the Stanford Daily decision is a return to the
subpena first rule which governed all third party searches until 1978.
But apart from this rule, which I have outlined extensively in my
testimony, I think there is a very immediate and compelling reason to
go to the subpena first approach for all third-party records, and that
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54
is, as you know Mr. Chairman, Congress is now considering a wide
variety of legislation proposals coming directly from the President's
Privacy Protection Study Commission recommendations.
At the core of these recommendations and in legislation pending
before the Government Operations Committee and in the Senate,
is a proposal to limit the Government's access to third-party records
by requiring that the record subjects, not just the doctors, lawyers,
news organizations, et cetera, but that the record subjects themselves
be notified and given the opportunity to contest any Government
effort to obtain information about them.
This demonstrates that were you not to take the broad approach in
this bill, I think you would be to a certain degree undermining the
effort that is underway right now to provide the kind of notice and an
opportunity to challenge for third parties in the context of medical
records, credit records, and other records which are subject to
protection.
Obviously, last year's Financial Privacy Act was the beginning of
that process. Now even under the subpona first rule, of course we're
aware of the fact that there are going to be circumstances in which a
search warrant would be justified if it could be demonstrated that
particular circumstances existed.
The principal one is the criminal suspect that's not a third party.
A criminal suspect on whatever standard, is not a third party subject
to the kind of protection we are talking about.
Second of all, those who are in possession of contraband or the fruits
or instrumentalities of a crime are subject to search, under tradi-
tional fourth amendment law.
And then finally, perhaps somewhat more controversial and a little
more difficult to apply, is an exception where there is a likelihood that
materials may be destroyed or removed. One wants to be very careful
with that exception, particularly in the area of press activities.
Now there is a wide variety of bills that have been introduced and
are pending before your subcommittee, Mr. Chairman, which do ad-
dress this broad third-party protection.
The most recent and I think the strongest is the bill that Mr.
Railsback introduced yesterday, which has been introduced in the
Senate by Senator Mathias. I am very pleased to note Mr. Gudger and
Mr. Sawyer also are sponsors of broad third-party protections.
Let me just say a word or two about the Justice Department pro-
posal and then open myself to your questions.
Mr. KASTENMEIER. Perhaps before, if I may again interrupt, you
begin your Justice discussion, there is another recording vote on. We
ought to go to the floor and return presumably one last time, Mr.
Shattuck.
So bear with us and I'm sure a couple other people will come back,
too.
Mr. GUDGER. I believe it is rather interesting to note that the ab-
sence of this committee could very well have affected the last vote.
The budget vote was enacted by a six-vote margin, and I think
there were six of us that went to the House to cast ballots on the last
vote.
Mr. KASTENMEIER. Well, this is on a rule. I don't think our vote
will necessarily determine the outcome, but nonetheless for our pur-
poses we must go.
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And we will be in recess then.
[Recess.]
Mr. KASTENMEIER. The committee will come to order. Mr. Shattuck,
you were about to review the Justice Department's proposal and then
=conclude your testimony.
Mr. SHATTUCK. Thanks, Mr. Chairman. The Justice Department's
bill is an imaginative one in that it attempts to define and protect
-first amendment materials. But we are very disappointed that it is as
limited as it is, and pleased that the other bills referred to in my
testimony, three of which are sponsored by members of your sub-
committee, are broader.
.But let me touch quickly in two respects
Mr. KASTENMEIER. Do you consider them broader if, in fact, they
apply only to U.S. 18-U.S. Code of Federal Testimony?
Mr. SHATTUCK. It was true that, I believe, three of the seven bills
-which you have referred to on page 14 of my testimony only apply at
the Federal level, although they cover all third-party records. We
would strongly urge that they be broadened to cover State and local
-third-party records as well.
Mr. KASTENMEIER. Do you see any constitutional difficulties with
that? If Federal law is extended to all third parties, State as well as
Federal, this sort of protection?
Mr. SHATTUCK. I don't believe so, Mr. Chairman. The memorandum
that I have submitted with my testimony covers the constitutional
question.
Let me just summarize it very quickly by saying we believe that
under the commerce clause, any activity in general which affects
interstate commerce and which is interrelated with other activities
affecting interstate commerce does permit Congress to go into the
regulatory business, particularly with enforcement of the constitu-
tional rights under section 5 of the 14th amendment.
An analogous piece of legislation in this area is the 1978 wiretap
- statute. There is an important States rights concept underlying the
.statute, and that is that it sets minimal standards,but certainly not
all the procedures that would be employed on a State-by-State level.
And many States have, in fact, adopted their own wiretap laws
following the enactment of the 1978 act, which set procedures that
,are unique but nonetheless comport with the general standards set
forth in the wiretap bill.
In the context of the third-party records question, obviously there
will be differences from State to State of particular types of privileges-
attorney/client privileges, doctor/patient privileges-and those could
.well be embodied in State laws enacted following the passage of a
Federal statute which would set minimal procedures in the area.
There is one other way in which the Justice Department proposal,
I think, is good in addition to its coverage of State and local, which I
would just like to mention.
And that is that it gives particular protection to the work product
materials of journalists, the notes and most sensitive information that
'-is prepared in the course of getting materials ready for first amend-
--ment dissemination. There is no exception to the subpena-first re-
quirement for those materials except in the case of criminal suspects.
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56
So you cannot search for a reporter's notes on an assumption that
they may be destroyed or the notice would otherwise lead to dif-
ficulties for law enforcement.
That is a very important first amendment protection and we recog-
nize that in the bill.
There are a number of aspects of the Justice Department proposal
which concern us. I would just like to mention one in concluding.
There is an exception to the supena-first rule with respect to in-
formation that "relates to the national defense, is classified informa-
tion or restricted data."
The effect of that exception is that it really effectively creates a
form of prior restraint, a very dangerous one.
It would apply quite arguably to cases like the Pentagon papers
case, since the Pentagon papers were materials that were classified
and were held by the New York Times in preparation for publication.
So a search warrant could authorize the police to go into the New
York Times to seize the Pentagon papers. It would not even be neces-
sary to go to court to get a prior restraint.
That is a very disturbing and hopefully unintentional meaning of-
that provision in the Justice Department bill. We would urge the
subcommittee to address that so there would not be authority to.
search for supposedly classified materials with no notice to journalists,,
since this would, in very real terms, amount to a form of prior restraint.
Well, thank you Mr. Chairman. Let me just conclude by saying-
that I'm very happy to work with the subcommittee in expeditiously
developing legislation and getting it to the floor of Congress.
We are not committed to any single approach, although we feel
very strongly about the need to protect all third parties. And I think
it would be a major mistake not to extend the bill as many members.
of the subcommittee seem to be thinking, because that would then
sanction the very invasion of privacy which the Stanford Daily decision.
has created.
I would be happy to answer any questions or respond in writing..
Thank you.
Mr. KASTENMEIER. Thank you, Mr. Shattuck. Your statement
suggests that the Supreme Court in the Stanford Daily case removed
all privacy protection for persons not suspected of a crime.
Weren't there police searches of journalists conducted prior to the
Stanford Daily decision or the fact situation?
Mr. SHATTUCK. There are no reported pre-Stanford Daily decisions
that I or any of the other people who I know who have looked closely
at this, have found that upheld search warrants directed at news.
organizations or any other third party recordholders. There simply
aren't any recorded decisions.
Now that doesn't mean there may not have been instances, but it
was certainly not the law that that kind of search could be conducted.
Mr. KASTENMEIER. Do you or does the ACLU have a bill of your-
own to offer as a model to solve this problem?
Mr. SHATTUCK. The bill that we feel is the strongest among all that
been introduced so far, is the one that is sponsored by Mr. Railsback
and was first introduced by Senator Mathias.
I don't know the number of it because it just went in yesterday..
But it provides for all third-party coverage and has a criminal suspect.
exception that applies only to contraband.
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Mr. KASTENMEIER. Well, we will certainly want to take a look at
that bill and test that bill in terms of testimony of others including
some from the Justice Department.
Do I understand you say that that we would be able to base it on a
Commerce clause? Notwithstanding the fact that the individuals may
not be Commerce in the ordinary context involved?
Mr. SHATTUCK. Well, I think there may become a point where it can
be argued that the Commerce clause does not reach particular third
parties.
I think that all the individuals
Mr. KASTENMEIER. I am concerned because I think wiretapping and
the Federal nexus to wiretapping and the ability to controll it under
title III, is somewhat distinguishable from this.
COUNSEL. Mr. Chairman, under the wiretap law the Congress re-
ported not merely to control wiretapping or communications over the
Mmes of communications-common carriers-by microphones, bugs,
that sort of thing also-for which the only Commerce clause nexus
would be th' items clause themselves manufactured and then sold in
interstate commerce would bring that situation much more closely
than it might first appear on the surface to that particular factual
situation.
Mr. KASTENMEIER. I thank counsel for that statement.
Mr. SHATTUCK. Mr. Chairman, if I could say that there is one other
very important constitutional provision and that's section 5 of the 14th
amendment which permits Congress to enact legislation to enforce
constitutional rights.
If Congress were to determine that constitutional rights, until the
Stanford Daily decision, were sufficiently important in this privacy
area and wanted to carry them forward, it could make a factual de-
termination that that was an area for enforcement.
Mr. KASTENMEIER. As far as the Mathias/Railsback approach, do
you endorse it in its entirety? You have no particular exception con-
ceptually to that approach?
Mr. SHATTUCK. The only exception is that that approach also does
not solve the problem of the Pentagon papers that I just mentioned
before, assuming that it could be construed, although we would
strongly resist that construction that the Pentagon papers were con-
traband in some respect, or any other materials held by the press for
publication that might be considered contraband.
Mr. KASTENMEIER. It doesn't use the term "classified."
Mr. SHATTUCK. No, that's right.
Mr. KASTENMEIER. Whatever term is used in the administration.
Mr. SHATTUCK. Off the top of my head, I think the legislative history
of the bill could probably solve the problem I'm talking about without
any amendment, but I think we need to look more closely at it.
Mr. KASTENMEIER. Well, I personally thank you for your testimony
today. I am going to ask my colleague, the gentleman from North
Carolina to assume the chair and continue. I am sure he has also some
questions for you and will conclude the hearings this morning. I ap-
preciate his doing that so I can attend a meeting for which I am some-
what late.
. Mr. GUDGER. Mr. Chairman, thank you. I am pleased to take over.
My questions to Mr. Shattuck are going to be very brief, but I do
have one or two points that I would like to develop. Thank you, Mr.
 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
Shattuck. I am gratified about your comments about the 14th amend-
ment and the fact that section 5 of the amendment does give the Con-
gress the power to enforce the rights which the 14th amendment,
protects.
Now, section I of the 14th amendment, of course, is the section that:
provides that no State shall make or enforce any law that shall ban a,
citizen of the United States, nor shall any State deprive any persons
of life, liberty, or property without due process of law.
I presume that in reading the first section and the fifth section to-
gether, you are saying that if the Congress were to define a right of
privacy from search and seizure in any instance where the search is
against an innocent third party and the subject of the search was
evidence only, that you feel that by declaring this right we may place
a burden upon the States to recognize it by their own laws and by
their own practices.
Because we could in effect, mandate that recognition. And you
suggest that the surveillance provision of the Safe Street Act gives us
some precedence in this area.
Is that the sense of what your testimony has been?
Mr. SHATTUCK. Yes; that is the sense of the testimony, but I want
to stress that we're talking about minimum standards and not elabo-
rate procedures or anything that would impact on the State court
system.
Let's say the State of North Carolina has a magistrate system that
dialers from a judicial warrant system in North Dakota. There would
be no reason for Congress to tell North Carolina precisely who ought
to be making the determination as to who will be searched.
Mr. GUDGER. Thank you, I appreciate your drawing that distinc-
tion because I think it is a very important one.
Let me ask you a further question. Going down that trail, just an
inch or two further, out of concern for the general lack of commerce.
clause connection in the State enforcement field and in the Stanford.
Daily situation for example, the act which I drew had restrictions in,
its terms only to Federal jurisdiction and was in effect defining Federat
criminal practice and procedure.
It was in effect a procedural act rather than one that tried to define>
and declare a specific right of privacy under the 14th amendment..
You are suggesting that that approach presumes a constitutional
problem which in your judgment does not exist, if we are specific-
in declaring this as a right deserving of protection and acknowledge
ment at the Federal and at the State level as a right contained within
the privileges immunities definitions, we will say, of the 14th
amendment?
Mr. SHATTUCK. That's right, Mr. Chairman, although I think again.
one can refer to the commerce clause even absent the 14th
amendment, because, as counsel has suggested, and I would certainly
agree, the wiretap statute, which has been held constitutional, does.
regulate a large number of techniques that in no way involve specific
interstate activities, but there is an interrelationship between the
conduct that is interstate and that which is intrastate in the wiretap
statute.
I think the same thing would be true with respect to the kind of.-
activities we are talking about in this bill.
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Mr. GUDGER. One other very limited question that I would like
you to comment on, if you feel free to do so now or perhaps you could
comment on it by later correspondence to the committee.
You're aware, of course, that section II-A creates a protection for
any work-product materials and section II-B refers to documentary
materials other than work product.
It seems to me that the delineation between work-product materials.
and document nonwork product, may be very, very vague in many
instances. The only situation it seems to me offers a clear parallel
is the work-product immunity generally recommended under rules.
of discovery under the Federal Rules of Civil Practice.
So that my work product as an attorney may not be subject to.
discovery by opposing attorneys in civil litigation, whereas the docu-
ments which I have in my possession which are relevant to the contro-
versy in litigation are clearly subject to being revealed or disclosed.
Do you feel that this might offer an area in which we might seek a.
line of definition between work product and nonwork product,
documents?
Mr. SHATTUCK. I think that sounds like a reasonable approach..
I would like to think about it a little more and perhaps respond in
writing.
There is one area in the work product/nonwork product distinction
that I think raises some trouble that Mr. Davis was referring to earlier,
and that is if there is a search authorized for nonwork product
materials in an exception to the subpena first rule for those materials,.
which doesn't apply to work product, police are going to get in the
door and once they are there, the newsroom is usually chaotic enough
that it is not easy to distinguish between work product and nonwork
product.
Once they are there, the search is likely to uncover a range of ma-
terials that include work product.
Now the practical solution to that is hard to come up with. I don't
know whether you could simply eliminate some of the exceptions in
the non-work-product area-that's what we have urged-or to raise
the standard, for example, the standard of reasonable suspicion that
you were talking about earlier. It could be raised to probable cause
with respect to the life-endangering circumstances.
That would help.
Mr. GUDGER. If we were to take the broad route of trying to grant
immunity and all innocent third parties from search and seizure of
mere evidence, do you feel that it would be incumbent upon us to
require the affidavit or other evidence on which the search warrant
issues, to specify the document so as to avoid this riffling through vast
batteries of material or sifting out entire file systems?
Do you see this as one of the shocking aspects of the Stanford Daily
circumstance?
Mr. SHATTUCK. Yes, certainly. The most shocking aspect of it is
that when there is a search warrant being executed by the police, it
is the police who are making-or whoever is investigating, making the
determination of what they ought to look at, unlike a subpena where
you get a subpena and you have an opportunity to go up and check
your files and pull out the document that is specified in the subpena.
So even when the warrant is specific, as to what is going to be
 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
searched for, the police or the people executing the warrant are going
to be going through the files to make a determination of where that
material is.
I don't think it is enough just to provide for specificity in the
warrants. That is precisely why a subpena-first rule is necessary.
Now where a warrant exception exists in some of these categories
we have talked about obviously should be as specific as it possibly can.
Mr. GUDGER. Is there any justification in your mind for our having
a broader rule of defining the subject of search than we have in the
rules defining the item to be produced under subpena duces tecum?
Mr. SHATTUCK. A broader -rule to define the subject of the search?
I'm not sure I quite understand.
Mr. GUnGER. Do you feel that if a search for evidence is authorized
against someone who is subject to search, say the newspaper is
charged with some fraudulent practice and it is subject to being
searched in that direction or in that connection, should the search
warrant be as specific as a duces tecum subpena?
Mr. SHATTUCK. Yes; I think that is a very important point to make.
Mr. GUDGER. And should this legislation relate to points as well as
the broad aspect of what areas of protection it's going to raise if it's
going to deal with media protection, work product protection beyond
media, say in the lawyer's situation, the media situation, et cetera?
Or protect all third parties in the possession of all items of evidence
only? Do you still feel that specificity of the warrant should be re-
quired in any instance and should perhaps be as specific as the duces
tecum subpena?
Mr. SHATTUCK. Definitely. I think that the evolution of the cases in
this area, as I pointed out in the testimony, is very disturbing. There
are warrants that have been upheld for searches of testimony "yet
unknown."
The police go in and they are authorized by the warrant to search
for materials which aren't specified. That should be addressed in the
legislation as well.
Mr. GUDGER. I thank you very much for this very enlightening
testimony.
As we have been taking your oral testimony here, I have been scan-
ning this very excellent written testimony and I commend you for it
and thank you very much for your contribution to this particular
meeting.
Mr. SHATTUCK. Thank you, sir.
Mr. GUDGER. The meeting stands adjourned.
[Whereupon, at 12:45 p.m., the Subcommittee on Courts, Civil
Liberties, and the Administration of Justice, was adjourned.]
 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
ZURCHER V. STANFORD DAILY
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE
OF THE COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:05 a.m., in room
2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier
(chairman of the subcommittee) presiding.
Present: Representatives Kastenmeier and Gudger.
Also present: Bruce A. Lehman, counsel; Joseph V. Wolfe, associate
counsel; Audrey Marcus, clerk.
Mr. KASTENMEIER. The subcommittee will come to order.
This morning we are meeting again on H.R. 3486 and other legisla-
tion relating to protections against certain searches conducted by
government.
I will be joined momentarily by Mr. Gudger and Mr. Mazzoli.
It is my understanding Mr. Hansen has not yet arrived, but I
would like to call up Prof. Mark Tushnet, Wisconsin Law School in
Madison, and a very distinguished professor and student of this and
other important public policy and legal questions.
I am very pleased to greet you this morning.
TESTIMONY OF MARK TUSHNET, PROFESSOR OF LAW, UNIVERSITY
OF WISCONSIN
Mr. TUSHNET. Thank you, Mr. Kastenmeier.
I have submitted a statement and I will just touch on some of
the points in it. Then I will be happy to respond to any questions
you may have.
[The statement follows:]
STATEMENT OF MARK TUSHNET, ASSOCIATE PROFESSOR AND ASSOCIATE DEAN,
UNIVERSITY OF WISCONSIN LAW SCHOOL
My name is Mark Tushnet. I am Associate Professor and Associate Dean at the
Law School of the University of Wisconsin. My primary concern in teaching and
writing has been with problems of federalism and of congressional power with
respect to state and local governments, and I am therefore pleased to appear
before this subcommittee to discuss the constitutional aspects of H.R. 3486,
the "First Amendment Privacy Protection Act of 1979."
I want to emphasize at the outset that my prepared statement will discuss only
the constitutional aspects of the proposal-that is, does Congress have the power
to enact the proposal, and, even if it does have that power, would the bill transgress
constitutional limitations, particularly those arising out of the interests of state
(61)
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and local government. As you will see, I regard the two questions, of power and
of limitation, as separate. My general argument will disregard the details of the
proposal, except in one respect, and, more important, will largely ignore the
policy arguments-the competition between first amendment and law enforcement,
interests-that you must consider. Again, there is one exception.
I believe that, ultimately, the policy and constitutional arguments collapse
into one. That is, if you as members of Congress deliberately weigh the policy
questions, and in particular the question of whether the gain to first amendment
interests outweighs the impairment of state and local law enforcement interests,,
then you have discharged your constitutional obligations.
I will develop this argument in a moment, but there is one brief and another
more extended preliminary point. First, I have spoken of first amendment "in-terests". In light of the unfortunate decision in Zurcher v. Stanford Daily, to which
this proposal is a response, we know that the bill does not simply create remedies;
for constitutional violations; the activities it prohibits and for which it provides,
remedies are not themselves violations of the Constitution. At the same time, how-
ever, the activities clearly may directly affect freedom of inquiry and expression.
Thus, the bill seeks to create a non-constitutional framework within which free--
dom of inquiry and expression may be pursued more vigorously than the first
amendment itself requires. But this raises constitutional questions about the bill.
Substantive first amendment law-for example, the prohibition on punishment of,
speech that does not incite to imminent lawless conduct-embodies the constitu-
tional accommodation between freedom of expression and other interests, such as,
law enforcement. Non-constitutional "extensions" of the first amendment neces-
sarily embody a different accommodation, less concernd with those other in-
terests. To the extent that the other interests themselves have constitutional roots,,
as state and local law enforcement does, the new accommodation may be un-
constitutional.
The second preliminary point deals with the application of the statute to officers
of the United States. Many constitutional questions are foreclosed by the bill's use
of a remedy of money damages rather than of exclusion from evidence. As to
officers of the United States, all the bill says is that if they behave in a way of which
Congress disapproves, though the Constitution does not, the United States will'
compensate those aggrieved by their misconduct. This is so obviously proper under
the Constitution that extended discussion seems unnecessary. We know, for-
example, that most ordinary torts committed by government officials do not vio-
late the Constitution; and yet the Tort Claims Act allows recovery by injured
people.
This portion of the proposal, then, is supported by Congress' general power to
act as employer and personnel manager, a power that may perhaps not be tied to
any particular enumerated power in article I, section 8, but which is plainly in-.
herent in the structure of our government. If one feels pressed, perhaps by con-
cerns about intrusion on the powers of the executive branch to act as personnel.
manager, one can identify specific sources of power. The bill regulates behavior in
connection with investigation of criminal offenses. Each federal crime is based
upon some enumerated power-over the mails, over interstate commerce, over-
the armed forces, and so on. Limitations on investigatory activities as to each
crime can be based upon the enumerated power that allows Congress to enact the
criminal statute itself. That is, the power over the mails justifies both the enact-
ment of the mail fraud statute and of limitations on the way mail fraud may be in-
vestigated. But all this is really unnecessary; the structural argument is over-
powering anyway. IRI
If there are constitutional questions raised by the proposal which deserve
serious inquiry, they arise from the inclusion of state and local governments within
its remedial sections and of their employees within its substantive sections. At this
point, the distinction between congressional power and constitutional limitations.
must be carefully drawn. The bill obviously rests on Congress' power to enforce,
by appropriate legislation, the guarantees of the fourteenth amendment. Many
commentators have been troubled by the justification that some statute is an ap-
propriate means of enforcing, say, the first amendment where the Supreme Court
has already decided that the amendment does not compel states to adopt the stat-
ute's rules. Part of the concern has been fear that if Congress could reject a
Supreme Court decision refusing to extend protection, it could also reject one
extending protection. That, however, confuses questions of power with questions
of limitation: the difficulty with a statute repudiating a protective decision is not
that no grant of power authorizes the statute, but that the statute transgresses:
some limitation on the power granted.
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63
Viewed in this way, section five of the fourteenth amendment is just like all the
other grants of power to Congress. It authorizes Congress to adopt statutes that
Congress regards as "necessary and proper" means for protecting the rights guar-
anteed by the first section of that amendment. And "necessary and proper," of
course, means "reasonable." Thus, if the First Amendment Privacy Protection Act
is a reasonable way of advancing first amendment interests, it is within Congress'
power to enact. I have indicated that I do not want to address the policy questions
raised by the bill, but I cannot refrain from expressing.my own view that, given
even the most modest notion of reasonableness, the bill is obviously within Con-
gress' power to enact.
Somewhat more difficult is the question of whether the proposal would transgress
limitations imposed by our federal system on Congress' powers. I can answer by
pointing first to authority and then to principle. In Fitzpatrick v. Bitzer, 427
U.S. 445 (1976), the Supreme Court upheld the extension of Title VII's prohibi-
tion on employment discrimination to state and local governments. Mr. Justice
Rehnquist's opinion for the Court noted that Congress had exercised its power
under section five of the fourteenth amendment, and that the other sections of the
amendment, by their express terms, limited the powers of the states. Thus, Con-
gress' section five powers may authorize more severe intrusions on state and local
government than would be allowed under Congress' other powers. I must confess
that I find the distinction between section five powers and other powers un-
persuasive; after all, the commerce clause was intended to be, and has been inter-
preted to be, a severs limitation on the powers of the states, too. Further, the Court
in Fitzpatrick addressed only an objection based in terms on the eleventh amend-
ment, and its opinion leaves open the possibility that a statute might surmount
an absolute eleventh amendment hurdle but fail in the face of a more general
federalism objection.
Thus, authority alone, while it supports the constitutionality of the proposal
is not conclusive. We must turn to constitutional principle. That principle is
straight-forward: in our constitutional scheme of things, Congress is the primary
guarantor of the interests of state and local governments. Congress is designed,
structured, to enact legislation that intrudes on federalistic interests only in cir-
cumstances where it is reasonably clear that national interests are more important,
in those situations, than the interests of state and local governments. You have
the constitutional duty to conclude, before voting in favor of any legislation,
that the proposal satisfies those conditions-that is, that the bill is wise public
policy, all things, including its impact on state and local government, considered.
I believe, too, that as a matter of constitutional principle, your judgment should
be conclusive of the federalism issue and that the courts have no proper role to play
in reviewing congressional enactments for federalism reasons. But the Supreme
Court's decision in National League of Cities v. Usery, 426 U.S. 833 (1976), rejected,
in my view wrongly that position. What are League of Cities' implications for the
present proposal? Unfortunately, League of Cities is a decision that is exceedingly
hard to understand. I can offer two interpretations.
First, Mr. Justice Rehnquist's opinion for the Court faults the application of
minimum wage legislation to states and cities because Congress tried to directly
displace those governments' decisions about how they chose to perform integral
governmental functions. One can play with the implicit distinction between
direct and indirect displacement, but the same points can be made more generally.
How do minimum wage laws affect government functions? Simply by increasing
the cost of performing them. The proposed bill would do the same, as, indeed,
do almost any federal laws applicable to state and local governments. Law enforce-
ment officials are given a choice: pursue the prohibited course and be subject to
monetary liability, or refrain from the use of an investigatory technique that they
believe is better than other techniques in the situation facing them. Although the
proposal would make states liable for monetary damages only if they chose,
there are costs-perhaps non-monetary but nonetheless real-imposed by the
intended deterrent effect of the statute.
The first interpretation of League of Cities would ask whether those costs are
enough to invalidate the statute. Here two lines of authority are relevant. First,
the general liability of state officials under 42 U.S.C. ? 1983 has the same kind of
deterrent effect as the proposal would, and that provision has not, of course, been
invalidated on federalism grounds. Thus, the indirect costs to law enforcement
through deterrence of preferred activities would not invalidate the act. Second,
recent Supreme Court decisions suggest that the Court is working with a line,
almost explicit in some of the opinions, between large monetary effects, which are
constitutionally questionable, and small ones, which are not. Thus, it refused to
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them and refused to applyminimum. wage laws to government employees, advert-
ing in both cases to the size of the state's potential liability. Yet it upheld the
taxation of attorneys' fees against the state and the sending of a notice to the same
public assistance recipients, the effect of which will be to secure repayment for at
least some of them, again adverting in both cases to the fact that the state's mone-
tary liability would be small. The question then is whether the costs to the states,
both monetary and in foregoing preferred activities, would be large or small. This
s a factual issue to which League of Cities directs attention. Although I have not
investigated the question, from all that I have read about the Stanford Daily case
,
t seems that the costs would be small; material covered by the bill appears to bei
rarely central to criminal investigation and searches rather than subpoenas seem
bo be more rarely necessary.
F 64
allow recipients of public assistance to recover benefits wrongfully withheld from
The second interpretation of League of Cities is found in Mr. Justice Blackmun's
concurring opinion, which treats the decision as involving, not just an assessment
of the costs as the first interpretation has it, but a balancing of the national interest
promoted by legislation against the intrusion on state and local concerns the
legislation embodies. As I have said, it is your responsibility under the Constitu-
tion to determine whether or not that balance favors enactment of this bill, and
I think that Mr. Justice Blackmun was wrong to suggest that the Court should
rebalance the same items. But League of Cities has been decided, and, according to
Mr. Justice Blackmun, the Court stands ready to determine for itself how the
balance should be struck.
What are the implications for your deliberations? It is tempting to think that
you should conscientiously evaluate Supreme Court decisions to pry out of them
the relative weights the Court assigns to various interests, but I believe that that
would be mistaken. First, I doubt that even the most diligent search through the
eports would reveal enough to be helpful, even if you thought that you should
inticipate the Court's balancing. But second, and more important, attempting to
:)redict how the Court will balance national and state interests would be not just
lifficult but wrong in principle. After all, the Court's balancing involves exactly
the same considerations that you will take into account-what I have called the
policy issues-when deciding the fate of this bill. If there is to be any benefit from
he Court's balancing, it must derive from the differences between the Court and
Congress in evaluating the same interests. If you try to predict what the Court
will do, you will be precluding any opportunity for a healthy interchange between
two institutions with different perspectives. The balancing interpretation, then,
,eads us to the same point that pre-League of Cities authority, and constitutional
:)rinciple, did: you discharge your constitutional duties by fairly considering the
?olicy issues raised by this bill.
It is not easy to interpret League of Cities, and it may well be wrong to attempt
;o force it into a purely doctrinal framework. Perhaps the case should be under-
tood as a reminder to you that among the policy issues you must consider is the
mpact the bill would have on state and local law enforcement efforts. I can hardly
believe that you would have thought about the proposal without thinking about
~hat impact, but if my appearance serves any purpose at all, it will be because
have brought the federalism issue directly to your attention.
That completes my constitutional analysis of H.R. 3486, but I do have the one
Jetail that I said I would mention. The proposal, in section 4(a)(1), conditions
absolute liability for damages against states on a waiver of sovereign im-
munity. As a matter of constitutional law, it is reasonably clear that no such
waiver is required. Fitzpatrick v. Bitzer and later cases go far toward establishing
im-
pose monetary liability even on an unconsenting state and despite the terms of
he eleventh amendment. All that seems to be required is a clear statement of an
ntention so to impose liability. The law of the immunity of states from liability
determinations by federal courts is one of those constitutional swamps from which
!ew emerge better off than before, and I can sympathize with the effort to stay
tway from it. I should point out, however, that the reference to waiver of immunity
s unnecessary, since a state is always free to waive its immunity. Although this
s indeed one of those policy issues on which your sensitivity to federalism issues
gives you better judgment than an outsider, I must note that the proposal would
be neater-in treating states and cities alike, for example-and more likely to
iccomplish its goals if it authorized civil actions against any state, not just against
~hose which waive immunity.
I am pleased to have been given the opportunity to present my views on the
,onstitutionality of H.R. 3586, and would be happy to discuss any matters of
,oncern to you.
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Mr. TUSHNET. My statement is concerned exclusively or almost
exclusively with constitutional aspects of the proposed First Amend-
ment Privacy Protection Act of 1979.
I want to get out of the way at the outset one preliminary detail
about the bill, and that is a question I have really about its limita-
tion of absolute liability for damages against States.
It conditions that liability on a waiver of sovereign immunity. As
I indicated in my statement, I think it's reasonably clear as a matter
of constitutional law that no such waiver is required.
It also makes the legislation somewhat asymmetrical. For example,
localities would be liable without being able to present a good faith
defense while States would not be liable unless they waive sovereign
immunity and their employees, such as representatives of the Tennes-
see Bureau of Investigation, would have the good faith defense
available.
That asymmetry just makes the legislation look a little awkward. I
can understand why the provision is in the bill. The question of
sovereign immunity and waiver and legislation imposing a waiver is
a very tricky constitutional one, and it may make sense just to avoid
that problem.
As I say, I just wanted to flag that.
Mr. KASTENMEIER. On that point, if I may interrupt you, I wonder
why it was inserted. As you know, the bill is essentially a bill written
by the Justice Department, which I was pleased, along with Mr.
Railsback, to introduce in their behalf and at their request. It does
not represent a product of our own.
I concede that. I assume they must have assumed that the question
might be raised by the States and to forestall that they conceded the
point, and forestalled the fact of raising the question.
Mr. TUSHNET. I assume that that is the reason.
Mr. KASTENMEIER. But it is your judgment that was not necessary
and it makes the bill somewhat, as you point out, asymmetrical.
Mr. TUSHNET. Yes; I think the case law is becoming clear. It's still
not absolutely established, but it is becoming clear that if legislation
clearly indicates an intention on the part of Congress to impose
liability on the States, the 11th amendment poses no barrier to such
legislation.
There may be some qualifications to that. I touch on them in my
statement, but I think those qualifications would not affect this
legislation either.
At the same time, of course, most of these searches are likely to be
conducted by local officers, employees of local police agencies, and so
on, and it may not be worth worrying about. It may be worth con-
ceding the soverign immunity question.
I should also note, however, that the legislation may not gain a
great deal for having done so because in a large number of States there
are statutes by which the State agrees to indemnify its employees for
personal liability and many States' attorneys general are asserting
such indemnification statutes as 11th amendment barriers to actions
against their employees.
Those claims have not succeeded. Nonetheless, to the extent that
the provision was designed to avoid litigation over a question of State
liability, it is not entirely clear it will succeed in doing that either.
 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
I would like to turn now to my primary points about the con-
stitutionality of the proposal.
I suppose the best way to put my basic position is that, as a legis-
lator, the statute raises for you and for Congress questions of policy.
Would it be a good idea to enact the statute in light of its impact
on law enforcement, on the one hand, and its promotion of privacy
and first amendment interests on the other?
My position, and I will suggest that it is supported both by prin-
ciple and by recent Supreme Court authority, is that once you resolve
the questions of policy, once you decide that on balance it would be a
good idea to enact this bill, then you have at the same time concluded
that the statute is constitutional.
I want to divide the analysis into two parts: First of all, the question
of congressional power and, second, the question of limitations on
congressional power.
In terms of the power that lies behind this bill, again there have to
be two divisions made, although one really does not deserve much
attention. The bill applies its restrictions both to Federal law en-
forcement officials and to State and local law enforcement officials.
With respect to Federal law enforcement officials, there is really no
substantial problem, it seems to me. Congress is acting as a personnel
manager directing the employees of the Government to act in a par-
iticular kind of way. There may be some mild, moderate separation-of-
powers problems; that is, can Congress direct the officials who are
employees of the executive branch to behave in this kind of way.
I think a signature of the President on the bill would go a long
way to establish that there would be no separation-of-powers prob-
lems. In any event, I outline in the statement another kind of response
to the separation-of-powers issue.
The more important division is the application of the statute to
the State and local law enforcement officials. The question then is,
-what power of Congress justifies enacting such a statute?
Now, had the decision in Zurcher v. Stanford Daily been different,
-had the Court held as a matter of the first or fourth amendments
State and local law enforcement officials had to subpena these mate-
rials, there would be no question about the statute. It would provide
a new or a supplemental remedy to either exclusionary rules or existing
damage remedies which have good faith defenses in them.
After the decision in Zurcher v. Stanford Daily, however, we cannot
say that the bill aims to provide additional remedies for constitutional
violations. The activities it prohibits and for which it provides remedies
are not themselves violations of the Constitution.
At the same time, however, of course, the activities may directly
affect freedom of inquiry and expression. The fear that generates this
kind of proposal is that rummaging through newspaper files is trouble-
some and may affect the way newspapers go about gathering
information.
. By protecting newspapers and other producers of these materials
from searches, the bill attempts to create a nonconstitutional frame-
work by essentially protecting more than the first and fourth amend-
ments themselves protect.
' Now, it is that extension or overprotection that raises the constitu-
tional questions about the, bill. After all, substantive first amendment
 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
law, a prohibition on punishment of speech that does not incite to
imminent lawless conduct, for example, embodies the accommodation
in the Constitution between freedom of expression and other interests,
.such as law enforcement.
The police have to be able to intervene in order to protect riots,
for example, and the incitement to imminent lawless conduct test
expresses the judgment that the constitutional accommodation be-
tween freedom of expression and law enforcement is that test.
Now, if we extend the first amendment in this nonconstitutionally
.required way, Congress is presenting its judgment that a different
accommodation would, as a matter of policy, be wise. But once first
:amendment interests are given more protection; the other interests
are given less, or are promoted less effectively.
To the extent that those other interests have constitutional roots,
the new accommodation may be unconstitutional, and I take it that
State and local law enforcement has some constitutional underpinning:
The clear source of power for the application of the statute to State
and local governments is section 5 of the 14th amendment which
provides that Congress has the power to enforce by appropriate legis-
lation its guarantees. The question of power then is, would the First
Amendment Privacy Protection Act of 1079 be appropriate legislation
enforcing the guarantees of. the 14th amendment?
I indicate in my statement that there has been, I think, some con-
fusion over the nature of section 5 of the 14th amendment. I think
both on authority and principle that section 5 of the 14th amendment
is like all other grants of power to Congress. It is a plenary grant of
power.
Congress can adopt statutes as it requires as necessary and proper
means for protecting the rights graranteed by the first section of the
amendment.
Necessary and proper, as it has come to have been used, means
reasonable, and so in terms of the grant of power to Congress, if
the First Amendment Privacy Protection Act is a reasonable way
of advancing first amendment interests, it is within Congress power
to enact. It seems to me there is very little question about the rea-
sonableness of the legislation as a means of advancing first amend-
ment interests, although we have to turn in a moment to whether
advancing first amendment interests in that way would infringe on
on other constitutional interests.-
But the question under "section 5 in terms. of Congress power is
simply, is it a reasonable way of advancing the first amendment and,
as I say, it seems to me unarguable that it is reasonable..
The second half of the question, then, is whether the proposal
would limit, would transgress limitations imposed by the Federal
system on Congress powers. Here again authority and principle in-
dicate it would not transgress such limitations.
. The authority is Fitzpatrick V. Bitzer, which I cite and describe in
my statement. The court there held in essence, I believe, that Con-
gress, acting under section 5 of the 14th amendment, may intrude on
State and local interests more deeply than it could under some exercise
of some other power; and I will address in a moment how deep the
intrusion is here.. But, given Fitzpatrick- and its interpretation of
section 5, we. can go a fair way. . . .
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In terms of principle, the basic principle, it seems to me, is one
that has been well established almost from the beginning of the inter-
pretation of the Constitution.
In our constitutional scheme of things, Congress is the primary
guarantor of the interests of the State and local governments. Con-
gress is structured so it enacts legislation that intrudes on State and
local interests only where it is reasonably clear that the national
interests are more important than the interests of State and local
governments.
That is why I said at the outset the policy question was the con-
stitutional question. Obviously, before the statute is enacted, Mem-
bers of Congress have to conclude that the interests it promotes are
more important than the interests that it intrudes on.
Congress, under our constitutional scheme, is the body to make
that judgment.
If the proposal satisfies the condition that the interests it promotes
are more important than the interests it intrudes on, if the proposal
satisfies those conditions, then it is, in my judgment, constitutional.
Now, the next question is, what happens after the statute is enacted?
I believe that as a matter of constitutional principle, Congress
judgment should be conclusive of the federalism issue, and that the
court should not intervene to displace Congress judgment. The Su-
preme Court in the League of Cities case rejected, wrongly in my
view, that position, and so, in order to fully evaluate the constitutional
problem, we have to interpret the League of Cities case.
It seems to me there are two possible interpretations of League of
Cities. One comes. through Mr. Justice Rehnquist's opinion for the
Court. It essentially examines the cost the legislation imposes on the
States and local governments. Now, how substantial are the costs that
the First Amendment Privacy Protection Act would impose?
The costs are of two kinds; one, if the States waive their immunity
the costs are direct, monetary liability. Or, if the States do not waive
their immunity, the costs are of deterrence of an investigatory tech-
nique that law enforcement officials believe is what they ought to use
under the circumstances they face.
In terms of monetary liability, it seems likely that the costs will be
quite small. The number of situations in which the prohibited searches
are thought to be essential seem to be rare. In reading about the
Stanford Daily case, very few examples, under 20, seem to be cited,
and the monetary liability would be small.
The second cost is this deterrent effect, and it generally seems to
have been regarded that the deterrent impact is not significant enough
to warrant the invalidation of similar statutes on federalism grounds.
Of course, a primary example is 42 U.S.C., section 1983.
On the whole, then, the costs of the statute would seem to be small.
Under this interpretation of League of Cities, my judgment would be
it would survive this first interpretation of League of Cities.
The second interpretation of League of Cities is found in Mr. Justice
Blackmun's concurring opinion. He was the fifth vote for the majority
in League of Cities, and so there is some reason to treat his opinion as
especially important.
That opinion treats the decision as involving not just the assessment
of the costs as the majority opinion does, but a balancing of the na-
tional interests against the State interest.
L3h{. r~., v ~ r,rrw rrl Frrr Relops 2007(05/2v `2 ? Cl
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 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
As I have said, it seems to me that it is Congress responsibility to
determine whether or not that balance favors enactment of the bill
and not the courts. But, in any event, given League of Cities, the
Court appears to stand ready to determine for itself how the balance
between national and State and local interests should be struck.
Well, what are the implications for congressional deliberations?
There is one natural response, and that is, if the Court is going to ask
what the proper balance is, we should try to guess what the Court
will do.
I think that if you guess what the Court would do, it would strike
the balance in favor of the legislation. The costs to local governments
seem to be relatively small. The promotion of first amendment in-
terests, while it may not be enormous, seems to be significant, and so
on.
Mr. KASTENMEIER. On that point, and it's a very interesting one
and it's good advice you are giving this committee, does the fact that
it tends as a matter of policy and/or law to overrule the Court or
frustrate the Court's decision in the Stanford Daily case enter into the
Court striking a balance in connection with the legislation affecting
the prior decision?
Mr. TUSHNET. I would think as a matter of principle it should not.
In the Stanford Daily case the Court was reacting to a situation in
which there had been no focused congressional attention to the balance
between State law enforcement and first amendment interests.
The very fact that Congress has directed its attention in a focused,
precise manner to the problem would, I think, carry some weight with
the Court, and it would make the situation sufficiently different from
the Stanford Daily situation for the Court not to take offense at
congressional action.
I think in addition that as a matter of principle, given congressional
power, as I have suggested under section 5,-the Court ought properly
not to take into account the fact that it had made a different prior
determination, and although I confess the cases don't come directly
to mind at the moment, I know that there have been recent cases in
which the Court has responded to legislation passed in response to
prior decisions to which it has not been unreceptive.
I guess the case that comes most clearly to mind is the one involving
the Civil Rights Attorneys' Fees Award Act of 1976, Hutto v. Finney
in which the Court upheld the constitutionality of the statute where
the legislative history was clear that the statute had been passed as
a direct response to a restrictive decision by the court.
That is not precisely on point, but it indicates something of the
Court's attitude to the problems.
As I say, if one were to guess what the Court would do in striking
the balance, my guess would be that it would strike the balance in
favor of this statute. I am not sure, however, that it's appropriate
for Members of Congress to try to make that preliminary judgment,
to condition their votes in favor of or against the statute on the basis
of a guess about how the Court would react.
Mr. KASTENMEIER. I also gratuitously suggest that that is rarely a
major factor in congressional decisions. Perhaps too rarely.
Mr. TUSHNET. I think that is a good thing. To the extent that
what should be happening is a dialog, between Congress and the
courts, the dialog would be truncated if Members of Congress were,
 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
saying, well; we-ought to do this because'the Court 'is going to say
we can't do something else. That is not. what the Court ought to be
hearing from Members of Congress. So in the end, I think the balancing
interpretation comes back to the beginning.
The constitutional questions raised by the bill, would-be resolved
by Members of Congress fairly considering the policy issues of the bill.
- It's not easy to interpret the League of Cities case and it may.well -
be wrong.to try and treat it as establishing some sort of doctrine.
Perhaps the best that can be said about the case is that it serves as a_
reminder to.-Member's of Congress that one of the policy issues that
has to be considered is the impact the bill would have on State and
local law enforcement efforts. -
Now,. given such things as the testimony by Attorney General
Hansen, it's hard for me to believe that you would have ignored that
impact. But I guess if my appearance serves any purpose at all it
will be because I have highlighted federalism issues as part of the policy
concerns.
I have been pleased to have been given the opportunity to present
my views on the constitutionality of the Privacy. Protection Act, and
I will be happy to discuss any further matters of concern.
. Mr. KASTENMEIER. I appreciate your statement and your analysis
and your recommendations.
In the light of recent days there have been other formulations ob-
viously than that suggested by the Justice Department on H.R. 3486
which we have discussed and which witnesses have discussed.
I observe that most of the committees and most individuals tend
to be disposed to act affirmatively with respect to the Stanford Daily
case and the question raised. As you know, the analysis of what can
be done has produced other pieces of legislation which are' commended
to us, some which involve only Federal law, but do not stop at first
amendment protection, and horizontally cover other privileged. term,
plus really all matters for private citizens in the context of searches.
Then there are. others and this is sort of a vertical one which ex-
tends in a narrow area of Federal power to the federalism and into the,
State and local government with respect to first amendment only.
There is the question of whether then, and 'there are others which
extend that far more, both vertically and horizontally, the question
is might-this extend to one, the press and others who communicate,,
authors, and the like, in terms of the first amendment protection.
Whether there may be another class of persons, less than the whole,,
doctors, lawyers, clergy, who may have otherwise special privileges
in terms of protection of third-party information for certain purposes,
and whether we might extend it to that group of cases and situations,.
or, whether, indeed, it ought to be extended fully to all citizens it
respective of the first amendment or other types of selected out
interests.
So I want to ask you about those cases. Let's take the most expan-
sive case; I think it's the Mathias-Railsback bill, which was just
recently introduced which, as I understand, does purport to extend
to all of these classes of persons both Federal and State and local.
What is ? your view, if any, about the constitutionality of that?-
Could they, predicated on say the commerce clause,- make an appro-
priate analogy to the wiretap bill, title III, which extended to State.
and- local enforcement as well as Federal in terms of procuring a.
warrant in advance of a wiretap?
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71
Mr. TUSRNET. Although I have not seen the proposal concretely;
as you describe it, my inclination would be to first of all attempt to
rest that proposal also on section 5 of the 14th amendment, not as
enforcing the first amendment but as enforcing the. fourth amend-
ment prohibition on unreasonable searches and seizures.
One could treat it, for example, as a congressional definition of
what is a reasonable search, which would have some weight under the
Supreme Court's decisions.
To some extent, because of my interests in federalism and consti-
tutional law, I am somewhat at a loss in evaluating the broader pro-
posal, because the relevant question, as my statement does indicate,
is how important are third-party searches generally to law enforce-
ment efforts?
The response to the Stanyord Daily case was, although the Court
did address the third-party search question generally, primarily in
terms of first amendment interests and it is, as I indicated in my
statement, reasonably clear that these kinds of searches are not an
essential tool of local law enforcement. I just don't know about the
.importance of third-party searches generally to law enforcement.
That seems to me in some ways that is an empirical question, and
you can find out how important they are, and once you find that out,
you will be able to assess the proposal more readily.
Mr. KASTENMEIER. Well, your answer then is really it's a public
policy question, in part to be determined by need as assessed.
Mr. TusJNET. Yes; I think that is absolutely right. If it turns out
that third-party searches are both an important tool of local law en-
forcement but one that is widely abused, for example, the policy ques-
tion might be resolved in favor of broad legislation.
If it turned out, it was an important tool of investigation and it was.
carefully used, it might be as a matter of public policy not worth.
enacting.
One advantage of the H.R. 3486 is that precisely because it is nar-
rowly focused it's much easier to make a judgment of the policy-
question.
Mr. KASTENMEIER. Based on that analysis it would not be, let's.,
say, necessarily rational to construct a bill which might include this,.
variation I describe to you:
At the Federal level under title VIII, coverage of all classes I have,
mentioned, those who would be protected by the first amendment,,
those by any other privilege and, indeed, the entire category of private
citizens, however situated under the Federal. Then have it extend to
the State and local only in terms of first amendment protections or
that narrow category of State and local.
That type of solution would not flow from your analysis.
Mr. TUSHNET. No; it wouldn't, primarily because, in terms of what
you have just described as the broad horizontal coverage confined to
Federal officers, I cannot see any serious constitutional question at
all. It could cripple law enforcement but if Congress decided to do that,
it would be plainly constitutional in light of Congress power to con-
trol Federal officials.
It might not be a good idea, but in constitutional terms it seems to
me there would be no question at all.
Mr. KASTENMEIER. One other question and that would be all I have,
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" I note that the State of Wisconsin and Madison at this very time
is considering some form of State third-party search legislation de-
riving presumably from the Stanford decision.
What is your view about that; this I guess is really not a constitu-
. tional question but, have you any view about whether each of the
States should be independently pursuing these matters as they might
under newsmen's privilege or shield laws or whether a national law
might be preferable?
Mr. TUSHNET. The advantage of refraining from enacting legislation
at this time, national legislation, is to allow the States to experiment
,with different forms of protection.
Wisconsin might adopt an analog to H.R. 3486; California might
adopt a general prohibition on third party searches, and Congress,
'after 5 or 10 years of expereience with State laws might be able to
evaluate experience and see which version would be best.
I think that is an advantage that attaches to legislation that raises
broader policy questions. Because H.R. 3486 is sufficiently focused, it
would I think be the core of any State legislation anyway, and the
advantages of seeing how the different forms work out would prob-
ably be small. There would likely be very few variations on the kind
of protection provided by H.R. 3486 and so confined to the narrow
proposal, I see very little to be gained by deferring to the States.
As to broader proposals, it may make sense because there are a
large number of variations that can be imagined, as you suggested.
Mr. KASTENMEIER. Thank you.
The gentleman from North Carolina?
Mr. GUDGER. Thank you, Mr. Chairman.
I have only one or two questions that I will ask of the professor.
One of those is this historically, as I recall the development of the
law of search and seizure, not until about a decade ago was it not that
mere evidence was proper subject for search. Prior to that time I
think most of the decisions had turned on State and Federal statutes
which clearly authorized search for contraband, clearly authorized
a search for product of crime, clearly authorized search for tools of
crime and that sort of thing.
I believe it was the character of the subject to be searched for that
more commonly qualified the search warrant regardless of the person
in whose hands it was to be found. If it was contraband, clearly it was
to be taken, If it was tools of crime, clearly it was subject to seizure,
and certainly if it was products of crime, subject to seizure.
Now, we come to this innocent third part holding evidence and
evidence having been determined to be a proper subject for search
and seizure. Is that a correct assessment of the status of the law now?
Mr. TUSHNET. Yes; it is. In a case called Warden v. Hayden the
Supreme Court, I believe that was in 1965, held that the fourth amend-
ment allowed searches for mere evidence and it was not until then.
Mr. GUDGER. But, thereafter, after Warden v. Hayden, there had
not been a case dealing with innocent third party possession of this
evidence to go to the Supreme Court until this case involving the
Stanford Daily.
Mr. TUSHNET. Yes; I believe that is correct also.
Mr.. GUDGER. Now, there have been I think several cases since
then which test the doctrine further, but none of them have reached
the appellate division. Is that substantially correct?
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73
Mr. TUSHNET. I don't know of any. I don't know of any appellate
decisions.
Mr. GUDGER. Now, my concern is this: We are confronted with
several different approaches here, H.R. 3486 would create a new media
immunity, with exceptions as noted within the act. Other legislation has
been offered suggesting a restriction within the Federal jurisdiction
which would act upon criminal procedures and deprive the magistrate
of a right to issue a search warrant unless there were some involve-
ment or suspicion of involvement by the possessor of the evidence.
Do you follow me there?
Mr. TUSHNET. Yes.
Mr. GUDGER. And then there seems to, be a third contention that
possibly Congress has the authority to write a 14th amendment im-
munity from search in all third persons, innocent third persons, which
would be effective under section 5 of the 14th amendment.
You refer to this but you don't reach a firm conclusion in your writ-
ten statement. Would you state how far you think Congress can go in
clocking immunity from State search?
Mr. TUSHNET. I have to make two disclaimers before I do. One is
that to the extent that that question calls for an evaluation of the
necessity for third-party searches as a matter of law enforcement, I
don't have any qualifications, except general reading in the area.
The second is that I regard myself in this connection as an ordinary
citizen, and so have a sort of self-interest in saying it would be nice if
I didn't have to worry about this kind of thing.
With those two disclaimers, my sense is that under section 514 of
the 14th amendment Congress could enact a broad third-party immu-
nity statute applicable to State and local governments.
Again, one advantage of the form of H.R. 3486 is that is takes the
form of a damage action, not the imposition of an exclusionary rule,
that might raise separate and more difficult constitutional questions.
But in terms simply of a statute imposing monetary liability, my best.
estimate would be that the. costs would be sufficiently low as to make
the broad legislation constitutional.
Mr. GUDGER. One further question, Mr. Chairman, prompted by
the reference to the damage features, damage suit features of H.R.
3486.
Assuming Congress did create an innocent third-party immunity,
would not any breach of that immunity present a damage liability
situation in all events, at least at the State court level?
Mr. TUSHNET. I am not sure I fully understand the question.
Mr. GUDGER. Would not there be a trespass at the very minimum
which would create a civil action available in most State courts if the
Constitution had immunized that person or that residence from search?
Mr. TUSHNET. The answer to that I think is very difficult to give. As
a matter of State law, States may well have a color of authority defense
which is broader than any good faith defense available either under
existing statutes or under the subprovision of this one.
Mr. GUDGER. Are you referring now to sovereign immunity?
Mr. TUSHNET. No; as a defense, an official's defense to a charge of
misconduct, to violating rights, as a matter of State tort law, there
may well be an absolute under color of authority immunity, which is
substantially broader than exists under Federal law.
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An argument can, however, be made that given a?Federal statute
protecting against this activity, such restrictive State laws would be
overridden either as a matter of interpreting the statute or as a
matter of a claim arising directly from the supremacy clause.
Mr. GUDGER. You are saying, in effect, that whoever, whatever
police officer executes a, search warrant which gives him color of right
to enter, that color of right could very well under State law immunize
him, even though it was a violation of a congressional interpretation
of a constitutional right.
Mr. TUSHNET. Yes; as a matter of State law I think there would
be a significant number of States who would take that line. There
would also be States in which there would be liability. I don't want
to suggest I am describing what 48 out of 50 States would do. But
there are a number of States that would immunize the official from
damage liability.
Mr. GUDGER. But you are saying that it would create a twilight
area in which there could be a lot of litigation and a lot of turmoil.
Mr. TUSHNET. Yes.
1VIr. GUDGER. If we are not very, very clear in what we do here.
:Mr. TUSHNET. Yes.
:Mr. GUDGER. Thank you very much, Professor.
Thank you, Mr. Chairman.
Mr. KASTENMEIER. Thank you, Professor Tushnet, for your contri-
bution to the committee.
We appreciate your testimony and your answers to questions, and
we wish you and your family a nice stay here in Washington.
Mr. TUSHNET. Thank you.
Mr. KASTENMEIER. Next the Chair is pleased to call as a witness
the Honorable Robert B. Hansen, attorney general of the State of
Utah.
TESTIMONY OF HON. ROBERT HANSEN, ATTORNEY GENERAL, STATE
OF UTAH, NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
Mr. HANSEN. Thank you.
Would there be any point in my reading the statement in the
record?
Mr. KASTENMEIER. Your statement is brief, only four pages. Suit
yourself. If it were a 20-page statement I would say no. Suit yourself.
Mr. HANSEN. Let me say this, that I think that the main thrust
of my statement deals with the necessity of the proposed legislation,
in view of the fact that there have been, according to Assistant Attor-
ney General Heymann, no Federal searches of any media organizations,
offices-zero.
When I found that out, I was curious to find out what the history
had been with respect to State searches and so I called his office and
was referred to Ronald Stern.
Mr. Stern gave me the information that is attached to the three-page
appendix to my statement that indicates that there have been only
15 instances since 1970, one being the Stanford case itself, so there
are only 14 other searches.
Twelve of those came from the State of California, and I submit,
under a situation-like that, that the legislature in Sacramento rather
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than the Federal Government in Washington, D.C., probably ought
to be addressing that problem.
I took it upon myself to call the two non-California media organiza-
tions involved, the Associated Press in Helena and the radio station
in Rhode Island, to find out what happened in those two instances,
because if they are as rare as that indicates that they are, and this
came from a committee that was obviously in favor of overruling
Stanford Daily, it's a pretty small problem, and I was informed, in
Montana at the Associated Press when they found out this had hap-
pened, they just called a judge and said, "Hey, judge, don't we ordi-
narily handle these things by subpena rather than by a search
warrant?"
The Montana judge issued an order staying that until there could
be a hearing on whether there was a need for a search warrant as
distinguished from a subpena duces tecum, determined that there
was not sufficient grounds for a search warrant, a subpena was issued,
and there really was no problem.
In the Rhode Island situation, I think it was almost a comedy of
errors as it was described to me by the news director there when I
reached him this morning, as I had been unsuccessful in the last few
days in finding out what the details were.
In that case, the television station had allowed the police, without
either a search warrant or a subpena, to view the video tapes to
find the identity of certain people involved in suspected criminal
activity, and it was only after the police had obtained really what they
needed-and I think under the impression they needed to get a search
warrant that preserved this evidence for trial-that the search war-
rant was, in fact, issued.
It's, totally different, that instance, from the Stanford Daily because
in the Stanford Daily case, and that is the most misunderstood case
that I think in the history of jurisprudence, the media of this country
had gone paranoid over a case that I think would never happen again,
because in the first place it grew out of the dramatic experience out
of the Vietnam war and the antiwar process which was a very unusual
situation, to say the very least.
Second, you had a media organization which was not a commercial
organization. This was a school paper which had very strong political
views. Third, they had published their stand that they would destroy
the evidence rather than cooperate with the police, so you had a very
clear indication from the very people whose offices were going to be
searched that a supena would absolutely do no good.
Thr thrust of all the bills that I have heard about on this subject-I
have studied only two in any detail but I have seen summaries in
media organization publications-indicate basically that search
warrant may only be used when the subpena won't do the job. If
police can get the fob done with a subpena, that is the way to go, and
nobody quarrels about that.
As a matter of fact, the history is very clear from that appendix
that that is what has happened throughout the country. It is the rare
exception based either on extremely rare situations, such as you had in
the Stanford Daily case, or on a lack of understanding, I think basically
on the law enforcement side that you had in the Montana and Rhode
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76
Island situations. It seems to me that you don't need to create a situa-
tion where you immunize, or rather create sanctuaries that the law
enforcement can't reach into, in a situation that the Congress can't
begin to imagine what the particular circumstances are, that would
make it very important for the law enforcement to reach that partic-
ular evidence, and I think basically, and as the professor indicated,
it is a question, I think, of policy, policy first between the Federal
Government and the States, and second a question of balancing the
interests of the press and media on the one hand against law enforce-
ment on the other.
I submit that the person most likely to make a judgment that is
fair and reasonable is the person that has all of the facts before him,
and who is that? That is the judge after it happens, not the lawmakers
before it happens. At best, you as lawmakers can only speculate as
to what all the circumstances and the ramifications of that are, but
the judge, when he has it before him, has the focus of all of the facts.
It seems to me that we are experiencing here a gross overreaction to
a most extraordinary factual situation, and if you read the media
editorials on this subject, you would think that law enforcement had
declared war on the media when, as a matter of fact, it was the reverse.
The reason that the attorneys general of this country, by and large,
came into this case and urged the Supreme Court to decide, as they
eventually did decide, in the Stanford Daily case, is the fact that you
had a $49,000 judgment against the prosecutor and against these law
enforcement officers who were simply carrying out an order of court
which seemed to them to be very much in keeping with what the law
was when they got this search warrant which the judge issued after a
showing of probable cause, and they go in there, and they are liable
for $49,000 in attorneys' fees as a result of this whole thing, and who
was damaged?
The Supreme Court decision in the Stanford Daily case indicates
that there was no obstructive examination of files and searches of
reporters' notes and all that sort of thing to learn about unrelated
criminal activities. The Stanford Daily police were getting at pictures,
pictures that were taken in a public place, that could have been
taken by anybody. In fact, there were police photographers on the
scene, but they didn't get pictures of the particular scene. In short,
there was no aspect of confidentiality
It seems ironic to me that we have all this hullabaloo over the
Stanford Daily case, and that doesn't impact on first amendment
rights anywhere near the impact of the 1972 decision of the U.S.
Supreme Court in the Branzburg case, where they upheld the required
disclosure of confidential sources, and Congress has not seen fit to
legislate against that decision.
In the Standord Daily case there was no factor of confidential sources,
and yet the media has lived, lo these last 6 years, and it really hasn't
been a source of great abuse. So my plea to the Congress is, let's wait
and see for another 7 years and see if these horror stories that are
conjured up on that case really come to pass. If they come to pass,
the Supreme Court itself has said that it is time enough then to deal
with the matter. In fact, quoting the court of appeals on page 3 of
my statement:
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77
The fact is that respondents and amici have pointed to only a very few in-
stances in the entire United States since 1971 involving the issuance of warrants
for searching newspaper premises. This reality hardly suggests abuse; and if
abuse occurs, there wlll be time enough then to deal with it.
I think that is really all that I have to say on the subject.
Mr. KASTENMEIER. Thank you, Mr. Hansen.
First of all, I would like to yield to my colleague from North
Carolina, Mr. Gudger.
Mr. GUDGER. Mr. Hansen, in your trial experience, and you are
now attorney general of the State of Utah, did you have in this court
experience, dig you try cases as a county prosecutor or as a district,
prosecutor in your State before becoming an attorney general?
Mr. HANSEN. I practiced law for 18 years before I spent 10 years
in the attorney general's office. When I was in private practice, I was.
on the defense side, so my experience has not been as a prosecutor.
Mr. GUDGER. Fine.
Now in how many instances, either during your experience as.
attorney general or during your experience in private practice in
criminal trials, have you seen search warrants used against interested
third parties to procure evidence? Have you seen any of it in Utah,,
or has there been any use, except against contraband? You heard my
earlier question?
Mr. HANSEN. Yes, I did, and that has been the only use. It has
been so limited. As a matter of fact, when the Stanford Daily case
came out, I asked our Statewide Association of Prosecutors if they
knew-and some of those had been prosecuting cases for 20 years or
more-of any instances in all that time where a search warrant had
ever been used with respect to any media organizations, and none of'
them knew of any such instance.
Now there have been subpenas, or course, to get evidence of the
type that we are dealing with in Rhode Island and Montana, but not
search warrants.
Mr. GUDGER. What I am asking you to do is to broaden your
sphere of concern beyond the search warrants addressed to media.
Mr. HANSEN. And to third parties?
Mr. GUDGER. Against third parties. It may be a psychiatrist.
Mr. HANSEN. Yes.
Mr. GUDGER. It may be a doctor, it may be a hospital, or it may be
any facility that has some evidence that may play upon some issue
involved in a criminal trial, for example, the procurement of evidence
from a mental institution.
Mr. HANSEN. Yes.
Mr. GUDGER. And the accused is pleading innocence by reason of
insanity.
Mr. HANSEN. Yes.
Mr. GUDGER. And maybe you require the procuring of medical
records and that sort of thing.
Do you know of any instance where the search process has been
used, search warrant has been used, in lieu of duces tecum?
Mr. HANSEN. I don't. I don't know of any, and although my ques-
tion of prosecutors was not as broad as your question is, I am sure if
there had been, they probably would have brought that up, because
I think that all of the discussion on the subject has not been limited
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78
to media organizations, because there is that question as to how broad
that ought to go, and the court itself in the Stanford Daily case made
reference to that, and they pointed out the difficulty that law enforce-
ment has sometimes of determining whether or not the person is
:innocent.-In fact, they said this is the first we focused on the involve-
ment of the owner or possessor of the place, because our focus has
always been only on the place to be searched, not with relation to how
:involved the person was who was in control of the place to be searched.
Mr. GUDGER. I suppose that the decision in Warden v. Hayden
surprised you a bit, because you had not thought in terms of the search
warrant being used as a method of procuring evidence for use in a
trial, except where that evidence was of the nature of the contra-
band-I say contraband-product of crime, of tools used in the com-
mission of a crime, or an article the possession of which makes it
subject to the violation of the law and therefore contraband.
Mr. HANSEN. As a matter of fact, I have always assumed that all
documents that would be an indication that a crime had been com-
~mitted were within the ambit of the fourth amendment searches, and
? so I really am not surprised with that decision.
Mr. GUDGER. You were not surprised.
Mr. HANSEN. No, I thought that was totally consistent with what
-the history of the fourth amendment has been, that our documents
,are subject to being searched if there is probable cause to believe that
they indicate that crimes have been committed.
Mr. GUDGER. Even though not contraband?
Mr. HANSEN. Yes.
Mr. GUDGER. And not at fault with the crime directly?
Mr. HANSEN. That is right.
Mr. GUDGER. And not in the hands of someone?
Mr. HANSEN. Right.
Mr. GUDGER. But you, yourself, in your own processes have
'always used duces tecum
Mr. HANSEN. Yes.
Mr. GUDGER [continuing]. To produce documents and papers.
'That is the point.
Mr. HANSEN. Yes, that is the point I make, and that is the point
I think is true not only in Utah but in all the other States. The only
'State that looks like they have got a problem like I say is California,
. and as I look at that list of who they are, it looks like they grow out
-of some pretty extraordinary circumstances that may well come with-
in the very exceptions that the Justice Department built into their
proposed legislation, because in some of those instances of the Patty
Hearst type situations I think might very well be at stake in. those,
and therefore the exception qualifications met.
Mr. GUDGER. Of course, there has been a vast battery of horror
- stories involving the invasion of dwellings or hotel rooms or private
residences for the purpose of making arrests or to stop a criminal
offense allegedly seen through a window or observed through an open
door, and the door then being closed, and that sort of thing. We have
had some very bad situations in one or two instances in North Carolina
.,where law enforcement officers, entering after having seen an obvious
game of poker taking place, and for the purpose of suppressing this
offense that was committed in effect in their presence and then,
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entering, are shot by those inside, and the litigation that ensues can
become very serious in the civil liability field and in the homicide
charges that ensue. Search and seizure and forcible entry by law
enforcement personnel is a very, very dangerous and inflammatory
area, and that is why I was curious as to what your own experience
had been
Mr. HANSEN. Yes.
Mr. GUDGER [continuing]. Vis-a-vis the use of search warrant for
procurement of paper evidence and documentary evidence in the hands
of an innocent third party from the standpoint of whether or not it
presents more hazards than are justified if we concede that Warden v.
.Hayden is a proper decision, relating not only to media, but relating to
the private home and the private office.
Mr. HANSEN. I am very interested in your comments on that.
It does recall my recollection at the last meeting of all the prosecutors
?of the State that the professor of law at the University of Utah dealing
with criminal law pointed out that, with the new development of
technology and the ability to seek, search far beyond what the naked
'eye could do and the casual observer observe, that we were getting
into areas that were questionable and counseled them to be very
careful not to get into apparently the very type of situations you have
related from North Carolina's experience. That would seem to fortify
his warning in that area, and I think that prosecutors generally do
recognize that we have to make sure that the law enforcement officers
in their enthusiasm to fight crime don't go beyond what is right and
proper into areas where the courts have not yet addressed concerns,
and I think that would be an area that we ought to look at very care-
fully, but one that I hadn't really considered in depth, because I
was concerned only about the scope of the pending bill, the Justice
Department's 3486, is it?
Mr. GUDGER. Yes, it is 3486.
Of course, I guess really the question that I previously phrased
relating to warrantless search, but by doing that, pointing out the
hazards that are inherent in forcible search, offers no clear parallel
when you are dealing with a search with warrant against someone who
is innocent of involvement with a crime, but the search process is a
powerful process; it is one that creates a tremendous amount of
authority in the hands of those who possess it.
Mr. HANSEN. Yes, but because it has to reach past impartial
judicial scrutiny and our judges I think are more and more inclined to
be very tough on issuing those. And I think that you have to recognize
the balance that needs to be done, and someone has to make that
determination. I would think that this system basically has worked
very well by-and-large, and that we are getting, as our society gets
more complicated and our methods have to become more sophisti-
cated, I think that we are maintaining a fair balance in that.
I would hate to see the overreaction to the Stanford Daily case pre-
vent a situation where law enforcement was not going to obtain the
necessary evidence that it needs to successfully prosecute crime in
those very, very rare and unusual cases where a subpena would not do
the job. I think the Stanford Daily case is the only. one that has hap-
pened, and I do not think that is very likely to occur again.
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80
It would be unfortunate to have that pendulum swing and the
balance be a substantial detriment to law enforcement, because I
don't think that we are really winning the war against crime the way- I
would like to see us win it.
Mr. Gun GER. One final question.
Of course Stanford Daily was dealing with photographs.
Mr. HANSEN. Right.
Mr. GUDGER. And it is very hard to describe a specific photograph
in such a fashion that the person against whom the process issues,
knows exactly what photograph or cannot deny knowledge of exactly
which photograph is involved.
Newspaper offices, like photographer shops, may have thousands of
photographs on hand and on file.
Mr. HANSEN. Yes.
Mr. GUDGER. I think one of the things that was abhorrent about
Stanford Daily was the idea of a law enforcement officer going in with,
a broad process whore he can screen all the photographs within the
confines of that publishing house.
Do you conceive of any way that we could require such specificity
in a search warrant as would afford a process whereby the person of
which an idea was demanded could have opportunity to produce it.
and avoid an actual sifting of documents?
Mr. HANSEN. Well, I think that-
Mr. GUDGER. You see what I am driving at?
Mr. HANSEN. Yes.
Mr. GUDGER. Let's say an officer has gotten his warrant. His war-
rant has authorized him to get a specific photograph, with a specific
definition of it. He knocks on the door of the place of business or the,
home. He says, "I have a warrant to search for this item. Do you have
it? Do yo u want to give it to met here at the door or do I come in?"
Mr. HANSEN. It would seem to me that is the very advantage of the
subpena process, so that you can have the magistrate as an arbiter
between the two parties, one trying to get the information, the other
to resist giving up anything that is not really pertinent, to get that
negotiated down to that type of specificity.
I think it would be pretty hard, as you have indicated yourself, to,
describe that picture or to satisfy someone who thinks that the other
party is holding back. And of course that is the only reason he would
really use the search warrant rather than a subpena anyway, to look
at all those things to tell. But in pictures it seems like you would be
able to see at a glance whether or not this was the scene that could
be generally described.
Here you had nine police officers being beat over the head with
chair legs, and so you would have some specificity on that. In other
words, it would seem like they could screen out the picture showing
a single individual, which a lot of pictures would be in a newspaper
office of individuals, and this sort of thing. So I think there could be
some specificity, but that is a very difficult problem, no question
about it.
Mr. GUDGER. Thank you very much.
Thank you, Mr. Chairman.
Mr. KASTENMEIER. Without objection your prepared statement,,
your written statement, together with the appendix, will be accepted
and made part of the record.
[The statement follows:]
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81
.STATEMENT OF ROBERT B. HANSEN, ATTORNEY GENERAL, STATE OF UTAH
H.R. 3486 was introduced to reverse the decision in the United States Supreme
'Court in the Stanford Daily case. Together with 17 other Attorneys General, I
urged the United States Supreme Court to rule as it did and I appear today to
oppose this bill.
The Stanford Daily case was a most unusual case. It is a much misunderstood
,case in my opinion. It was correctly decided as a matter of law. As a matter of
policy, I think it should stand. In our complex society, there are numerous con-
flicting principles that need to be harmonized and balanced for the good of all.
What were the interests that clashed in that case? Law enforcement officials
needed certain photographs which were taken in a public place by a news photog-
rapher to identify the assailants who attached members of the Palo Alto Police
Department. The police had been called to Stanford University on April 9, 1971,
to remove a large group of demonstrators. The officers were beaten with chair
legs and other weapons. One was knocked to the floor and struck repeatedly on
the head. Another suffered a broken arm. The student newspaper office (which
was not involved in the unlawful acts) was subjected to a 15-minute search of
photographic laboratories, filing cabinets, desks and wastepaper baskets, by law
enforcement and district attorney personnel armed with a warrant issued on a
judge's findings of probable cause. Locked drawers and rooms were not opened.
There was a dispute as to whether the searching officers read copy notes or corre-
spondence during the search, which took place in the presence of the staff, and
the officers were not advised that the areas they were searching contained con-
fidential materials.
The case established the principle that a state is not prevented by the Fourth
and Fourteenth Amendments from issuing a warrant to search for evidence simply
because the owner or possessor of the place to be searched is not reasonably sus-
pected of ciminalinvolvement.
The media has read the case as creating a very substantial threat-that searches
,of media offices will now become frequent and will compromise confidential sources.
A similar fear resulted from the 1972 U.S. Supreme Court -case of Branzburg v.
iHayes, 408 U.S. 665, in which the Court held that the public has a right to every
man's evidence and thus upholding an order requiring the disclosure of a confi-
dential source. That fear has not been found to be well founded.
? Searches of media offices simply have not happened. Mr. Philip Heyman,
speaking for the Department of Justice, to you on April 25th, 1979, said: "There
is no record of a search warrant even having been executed by a federal officer
against a press organization." Mr. Ronald A. Stearn, Special Assistant to the
Assistant Attorney General, informs me that a survey of national news organiza-
tions has produced only 14 other such instances concerning state warrants since
the one in question. I attach as an appendix hereto a copy of Mr. Sterns' letter
and the enclosed list of those instances. You will note that all but 2 of them took
rplace in California which hardly indicates a national problem. Only 6 of them
have occurred since 1974 and 4 of those related to a single situation. I urge this
committee to have its staff investigate each of those instances. I would be very
surprised if each of them was not as justified as the search warrant in the Stanford
Daily case. It is even less likely that the present fear will be realized. If it is, then
it should be dealt with then as the Court, itself, suggested in these words:
"The fact is that respondents and amici have pointed to only a very few instances
in the entire United States since 1971 involving the issuance of warrants for
searching newspaper premises. This reality hardly suggests abuse; and if abuse
,occurs, there will be time enough then to deal with it."
It has been my experience and observation that the judiciary is very sensitive
to First Amendment concerns. The U.S. Supreme Court in the Stanford Daily
case expressed concern for the press by counseling their fellow judges as follows:
" . state and federal magistrates should be aware that `unrestricted power of
search and seizure could also be an instrument for stifling liberty of expression.'
Marcus v. Search Warrant, 367 U.S. 717, 729 (1961). Where the materials sought
to be seized may be protected by the First Amendment, the requirements of the
Fourth Amendment must be applied with `scrupulous exactitude.' Stanford v.
Texas, 379 U.S. 476, 482 (1965)."
Finally, I would like to point out that the District Court Judge and the Circuit
Court of Appeals, who both ruled in favor of the Stanford Daily, and Justice
Stewart, who wrote the dissenting opinion in which Justice Marshall joined,
would have held otherwise if there were "probable cause to believe that a subpoena
would be impractical." Justice Stewart wrote on this subject as follows:
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"The District Court and the Court of Appeals clearly recognized that if the-
affidavits submitted with a search warrant application should . demonstrate
probable cause to believe that a subpoena would be impractical, the magistrate
must have the authority to issue a warrant. In such a case, by definition, a sub-
poena would not be adequate to protect the relevant societal interest. But they
held, and I agree, that a warrant should issue only after the magistrate has
performed the careful `balanc/ing/ of these vital constitutional and societal
interests.' Branzburg v. Hayes, supra, at 710 (concurring opinion of Mr. Justice-
Powell)."
The proposed bill thus goes beyond the protection which legal critics of the
Court's opinion in question feel necessary to protect the sources of information
necessary under our First Amendment. I, therefore, urge you not to enact this:
bill. If you do, I am fearful you will be creating sanctuaries in which evidence can
be deposited and put beyond the reach of law enforcement officers. For instance,.
one who is not personally involved in Mafia activities generally might well be
willing to cooperate on a particular illegal transaction such as one involving com-
puter fraud and be in possession of the software program which he is ostensibly
using or planning to use in connection with a book he is writing or planning to
write on the subject.
It would be much better in my opinion to permit a judge having full knowledge
of the actual facts to balance the interests of law enforcement and the interests
of the press than for lawmakers to make that determination in advance of knowing
all the facts concerning which the statute would later be applied. I respectfully
urge you to deter action on this matter to see if the anticipated abuses really do.
occur and are not corrected by the courts themselves.
U.S. DEPARTMENT OF JUSTICE,
ZION. ROBERT B. HANSEN, Washington, D.C., May 16,1979-
Attorney General of the State of Utah,
Salt Lake City, Utah.
DEAR MR. ATTORNEY GENERAL: Per our conversation, I am enclosing a list-
of state media searches since 1970. The list was compiled by the Legal Defense-
and Research Fund of the Reporters Committee for Freedom of the Press. I am
not aware of any additional state searches of the news media either prior to or-
during the period covered by the Reporters Committee list.
Sincerely,
RONALD A. STERN,
Special Assistant to the
Assistant Attorney General,
Criminal Division..
15 INCIDENTS OF SEARCH WARRANTS ISSUED ON THE NEWS MEDIA SINCE 1970
1. April 1971, Stanford Daily, Palo Alto, Ca. Police were seeking unpublished:
photos of demonstration at a hospital.
2. October 1973, Berkeley Barb, Berkeley. Police sought letter from the August
Seventh Guerilla Movement; warrant served on the attorneys for the Barb.
3. February 1974, Berkeley Barb, Berkeley. Police were seeking a letter from,
the Symbionese Liberation Army concerning the Patricia Hearst kidnapping.
4. March 1974, KPFA-FM, Berkeley. Police were seeking letter to station
from the Symbionese Liberation Army regarding the death of an Oakland school'
official.
5. June 1974, Berkeley Barb, Berkeley. The Federal Bureau of Investigation
was seeking a letter from the Black Liberation Army; warrant issued on attorneys...
6. June 1974, Phoenix, San Francisco. The Federal Bureau of Investigation.
was seeking a letter from the Symbionese Liberation Army; warrant issued on..
attorneys.
7. October 1974, KPFK-FM, Los Angeles. Police were seeking tape recorded-
message from the New World Liberation Front regarding a hotel bombing.
8. October 1974, KPOO-FM, San Francisco. Police were seeking a letter written
by the New World Liberation Front concerning a hotel bombing.
9. October 1974, L. A. Star, Los Angeles. Warrant issued for search of tabloid's
offices; police were seeking unpublished articles, address books, and unpublished
photos in regard to a complaint by a star that her face was used without authori-
zation superimposed in a nude photo.
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83
10. September 1977, WJAR-TV, Providence, R.I. Police were seeking out-
takes of picket line disorder in Warwick, R.I.
11. December 1977, KRON-TV, San Francisco.
12. December 1977, KTVU-TV, San Francisco.
13. December 1977,- KGO-TV, San Francisco.
14. December 1977, KPIX-TV, Oakland. In all four of the above situations,
police were seeking unpublished film of a disorder at a houseboat community..
15. April 1978, Associated Press bureau, Helena, Mont. Police were seeking,
unpublished notes and tape recording of interview with murder suspect in custody..
Mr. HANSEN. Thank you very much.
Mr. KASTENMEIER. I just have a question or two.
Mr. Hansen, your views represent the official position of the associa
tion?
Mr. HANSEN..Oh, no.
Mr. KASTENMEIER. Of, attorneys general?
Mr. HANSEN. I was asked by the attorney general of CaliforniaL
to. enter .the case, not enter the case but join in an amicus brief that
.I think 17 attorneys general did file. I am not saying-that is a large
number as compared with most Supreme Court cases when that many
come in. There weren't any to my knowledge that came in on the other-
side of that case, but the association itself has not taken a position,.
.but because there was a large number of attorneys general that felt,
an interest in this matter, I was asked to come and present the views
of those.
I might say this: That it certainly has not been a partisan line-up
.of the attorneys general. You find a pretty good balance between
,Republican attorneys general and Democratic attorneys general,
between those that are considered quite liberal and those that are
considered quite conservative.
I think that basically attorneys general, of course, tend to favor
support for law enforcement, but most of us are elected officials, and
we are certainly not anxious to be seen as opponents of and enemies-
of the media. So we have a real concern, and our concern has been,
one of educating the media to recognize what the Standard Daily
.case means and, more important, what it does not mean, because
,they I think have very exaggerated fears as to what is now permissible,.
and which is simply not going to happen in my opinion.
Mr. KASTENMEIER. Of course I am aware that the association does:
take positions on public matters. My recollection was it took a very
clear position in opposition to a bill that passed the House this week,
E. R. 10, which permits the Attorney General to initiate suits affecting-
constitutional rights of institutionalized persons.
Mr. HANSEN: Yes.
Mr. KASTENMEIER. But you say with respect to this particular-
matter they have not taken a position?
Mr. HANSEN. No; they have not.
Mr. KASTENMEIER. One of the problems is that there are pieces of
legislation-and this may be our fault for referring to H.R. 3486
other pieces of legislation before us which have different parameters.
,entirely. .
Now I would assume you would have no objection to a bill which:
would affect the use of search warrants in the Federal system ex
clusively?
Mr. HANSEN. No. I would have no objection to that.
Mr. KAST-ENMEIER. And-you are aware that there are some bills.
which go well beyond the media? .
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Mr. HANSEN. Yes.
Mr. KASTENMEIER. The 13 or, 14 cases you mentioned, in California
or otherwise, and an effect generally?
Mr. HANSEN. Yes, I am aware of that, and I have studied generally
this H.R. 1373, and my reaction to that is that although I prefer to
have it as limited as possible, and this does go to third parties as well,
it gives the court a great deal more flexibility so you do not have an
automatic screening out of situations such as the rare Stanford Daily
cases, where you might well need to have-and a fairminded person
hearing all the facts would say yes, that is a case where we ought to
allow a search through a search warrant rather than a subpena.
Mr. KASTENMEIER. One might be impressed, for the purpose of
argument, with your discussion on top of that of Professor Tushnet,
that certainly, as refers to the media, that this legislation would not
have great application, because the law enforcement at the State or
local level generally follows different procedures, procedures which
involve issuance of subpena, and do not commonly rely on search
warrants, certainly in the field of the media, and that accordingly
adoption of this legislation would have little effect in terms of law
,enforcement, might have beneficial effect in terms of public policy in
reassuring the public and others with respect to the curbing of issuance
of search warrants in such situations.
Mr. HANSEN. Well, I think that is certainly true, but to the extent
that it does apply to those rare cases, it requires the results to be
wrong, because if you had this law in effect, then there would never
have been a search warrant issued, and there would have been no
prospect that those assailants of those nine police officers, one of whom
had a busted head and another a broken arm, would have been brought
to justice.
I think that is very unfortunate. I think if we are going to have a
lawful, orderly society, those that attack our law enforcement officers
above all should be prosecuted.
Mr. KASTENMEIER. I can appreciate that analysis. I would not
in terms of that particular case be inclined to disagree with it other
than in balancing off, as Professor Tushnet was talking about, the
other balance may be that this is an invitation to law enforcement
officials throughout the country to access themselves of search
warrants?
Mr. HANSEN. Yes.
Mr. KASTENMEIER. When very often that may not have been
necessary?
Mr. HANSEN. And if they react that way, I would be the first to
favor the enactment of this type of legislation, but the Supreme Court
says let's wait and see if that happens, and I think that is good counsel.
Mr. KASTENMEIER. Thank you very much for your appearance
here this morning, Attorney General Hansen. We are very pleased
to have had you.
Mr. HANSEN. Thank you, sir.
Mr. KASTENMEIER. Accordingly, the committee will have hearings
next week on the question on Thursday and Friday, and we would
like the attendance of our membership, and trust that they will be
further enlightened on the subject.
The committee stands adjourned.
[Whereupon, at 11:30 a.m., the committee adjourned.]
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ZURCHER V. STANFORD DAILY
THURSDAY, MAY 31, 1979
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE
ADMINISTRATION OF JUSTICE,
COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:15 a.m., in room
2237, Rayburn House Office Building, Hon. Robert W. gastenmeier
(chairman of the subcommittee) presiding.
Present: Representatives Kastenmeier, Gudger, Matsui, Railsback,
and Sawyer.
Also present: Bruce A. Lehman, chief counsel; Joseph V. Wolfe;
associate counsel; and Audrey Marcus, clerk.
Mr. KASTENMEIER. The committee will come to order.
This is the fourth of five scheduled hearings on the question of
governmental search and seizure on bills such as H.R. 3486, press
protection legislation, and other bills of which there are a number,
related to the subject.
This morning, we are very pleased to have a distinguished group of
witnesses who all have, certainly in terms of the press if not as citizens
in general, a profound interest in the question raised by the Stanford
Daily case and prospectively by practices in this country within the
last decade or so relating to search and seizure.
This morning, I am very pleased to greet a panel of witnesses:
Mr. Charles W. Bailey, editor of the Minneapolis Tribune and chair-
man of the Freedom of Information Committee of the American
Society of Newspaper Editors; Mr. Jerry Friedheim, who is executive
vice president of the American Newspaper Publishers Association;
Mr. Robert Lewis, president of the Society of Professional Journalists
and Washington correspondent for Newhouse News Service, and also
representing Sigma Delta Chi: finally, someone who has been before
us before; and we are happy to greet again, Mr. Jack Landau, who
is executive director of the Reporters Committee for Freedom of the
Press.
Accordingly, I would like to call on you, Mr. Bailey. Would you like
to go first? You may proceed in any order you wish, and also, if you
care to give your complete statement, fine, or if you prefer any other
course of action, that would be agreeable, too.
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TESTIMONY OF CHARLES W. BAILEY, EDITOR, MINNEAPOLIS TRIB-
UNE, AMERICAN SOCIETY OF NEWSPAPER EDITORS; JERRY W.
FRIEDHEIM, EXECUTIVE VICE PRESIDENT, AMERICAN NEWS
PAPER PUBLISHERS ASSOCIATION; ROBERT LEWIS, PRESIDENT,
SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI,
WASHINGTON CORRESPONDENT, NEWHOUSE NEWS SERVICE;
AND JACK LANDAU, EXECUTIVE DIRECTOR, REPORTERS COM-
MITTEE FOR FREEDOM OF THE PRESS, ACCOMPANIED BY JOY
KOLETSKY, STAFF ATTORNEY, REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
Mr. BAILEY. Thank you, Mr. Chairman.
I think I may skip over several points in the prepared text that
might unduly take the committee's time.
My name is Charles W. Bailey. I am editor of the Minneapolis
'Tribune, and, I am appearing here today on behalf of the American
Society of Newspaper Editors and its Freedom of Information Com-
mittee; of which I am -the chairman. The society's members include
more than 800 supervising editors of daily newspapers throughout the
-country. - -
Members of the Freedom of Information Committee are: James
Ahearn, managing editor, the Record, Hackensack, N.J.; Edward
`Cony, vice represident/news, Wall Street Journal; Gil Cranberg,
-editorial page editor, Des Moines Register; Anthony Day, editorial
page editor, Los Angeles Times; James D. Ewing, publisher, the Senti-
nel, Keene, N.H.; John Finnegan, executive editor, St. Paul Pioneer
Press, St. Paul, Minn. ; Meg Greenfield, editorial page editor, the
Washington Post; Michael Grehl, editor, Commercial Appeal,
Memphis, Tenn.; Robert Healy, associate editor, Boston Globe;
Stuart Loory, managing editor, Chicago Sun-Times; John McMullan,
executive editor, Miami Herald; A. M. Rosenthal, executive editor,
-the New York Times; Jospeh Sterne, editor, Baltimore Sun; David
.Stolberg, assistant general editorial manager, Scripps-Howard News-
papers; Edwin Yoder, associate editor, Washington Star.
Officers of ASNE are William Hornby of the Denver Post, presi-
-dent; Thomas Winship of the Boston Globe, vice president; Robert
Clark of the Louisville Courier-Journal, secretary; and Michael
O'Neill of the New York News, treasurer.
As the committee is no doubt aware, newspaper editors all over the
,country were alarmed by the decision of the Supreme Court in the
Stanford Daily case. ASNE testified last year in the Senate in support
,of remedial legislation, and I have been instructed by the society's
.FOI Committee and board.of directors to reaffirm that position here
today.
We believe that the Stanford Daily decision represents a very
:serious threat to the right of citizens generally to be secure from
unannounced police searches, and, a serious threat to the operation of
the free press. In using the term "free press" I mean to include all
forms of publishing-books, magazines, broadcasts, photographs,
-films, and other forms of public communication-as well as the
-traditional newspaper.
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The Supreme Court made it explicitly clear that legislative reme-
,dies are available, and proposed legislation has in general taken one of
two forms-either what might be called a "fourth amendment"
approach, dealing with all warrant searches of innocent third parties
or a "first amendment" approach, focused solely on publications.
Our reservations about a press-only approach stem from two beliefs:
First, we believe the American press should in general try not to ask
for special legislation-many of us believe that a proper interpretation
of the first amendment gives us all the protection we need. Second,
-we believe that the rights of others in our society-for example,
'doctors and lawyers-are as much infringed by this decision as are the
rights of the press.
Therefore, as Tony Day testified for ASNE last year before the
Senate, most of us would prefer broad legislation to protect not only
the press but all other citizens. We base this preference on considera-
tions such as those cited by Mr. Justice Stevens in his Stanford
dissent:
Countless law-abiding citizens-doctors, lawyers, merchants, customers, by-
"standers-may have documents in their possesion that relate to the ongoing
criminal investigation. The consequences of subjecting this large category of
persons to unannounced police searches are extremely serious. The ex parte war-
rant procedure enables the prosecutor to obtain access to privileged documents
that could not be examined if advance notice gave the custodian an opportunity to
object.
I might note in passing at this point that there are cases pending
-which deal with warrant searches of lawyers' offices and which go
,to material that the lawyers in question claim is covered by attorney-
-client privilege. The committee may be aware of these. But, if not,
the April 1979 edition of the American Bar Journal at page 532 de-
scribes a case in St. Paul, Minn., which is presently before the State
Supreme Court, and. there is also at least one Los Angeles case, which
I found reference to in the National Law Journal on April 23. There
was a story in this morning's Washington Post on page A-3 in which
the allegation is made by the past president of the California Attorneys
for Criminal Justice that 24 southern California lawyers have had
their offices searched by local prosecutors within the past 3 or 4
years. So I think it is clear that it is not just a press mattar.
We prefer the enactment of legislation that would protect all
citizens-legislation along the lines of S. 115, the bill introduced
earlier this year by Senator Mathias of Maryland, and other similar
measures.
We regret that the administration has not supported broad legisla-
tion for the protection of all citizens. We agree with the position taken
in the Stanford case by the district and circuit courts, and by Mr.
Justice Stevens in his dissent; we think it would leave Federal and
State officials with adequate tools to enforce the laws. We believe the
- Justice Department, like many law enforcement groups at all levels
-of government, takes too pessimistic a view of the possible difficulties
that such legislation might create in the administration of justice.
One other. digression: There is another approach which I just
'became aware of in the last day or two after I submitted this testi-
Y.mony. In the Wisconsin Legislature on May 3, . a bill identified as
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Senate bill 221 was introduced, sponsored by 34 Members of the House
and Senate, which would establish an investigative subpena procedure
as a substitute for a search warrant. This strikes me as an intriguing
approach to the problem that the committee might want to take a
look at.
I have got a copy of the bill which I would be glad to leave with,-
the committee if you would like to have it.
Mr. KASTENMEIER. The Chair is familiar, in general terms, with the
Wisconsin initiative. We do not, as a matter of fact, however, have
the bill, and we would appreciate a copy of the bill for the record
(See appendix 4B.)
Mr. BAILEY. Fine.
Mr. KASTENMEIER [continuing]. Because we are interested in alt.
approaches to the question.
As you have suggested, the Wisconsin approach is somewhat in-
triguing. I am not clear on what the powers are inferred by an in-
vestigative subpena, but we will be interested in analyzing it.
Mr. BAILEY. Thank you.
The Stanford decision does have a special and immediate effect on
the press. Mr. Justice Stewart noted the "burden" involved in the
possibility that police rummaging through newsrooms would find in-
formation received from confidential sources-and might be able to
identify, and disclose, the sources themselves.
Every editor I know is deeply skeptical-to put it mildly-about.
Mr. Justice White's statement, in the majority opinion in Stanford,
that magistrates will be careful in considering search warrant requests
affecting the press. Anyone who has ever covered police court knows
that search warrants may be issued as a matter of course, with very
little inquiry; and in some jurisdictions, of course, they may be issued
by magistrates who are not even lawyers.
The Minneapolis Tribune, like many other newspapers, has taken.
steps to protect its confidential files, and those of its staff members,
from the kind of surprise sweep-and-rummage search legitimized by
the court in Stanford. It is one of the minor ironies of the climate that
now exists in American newsrooms that it seems prudent for me not
to know where the confidential notes and working papers of my
reporters are kept. All I know is that they are not in the building
where we work. I think that is a lousy way to run a newspaper-or a
country-but that's the way we have to do it these days.
Mr. KASTENMEIER. If I may interrupt, is that a general practice--
among major American newspapers?
Mr. BAILEY. Mr. Chairman, I think it is fair to say that most.
major newspapers have taken steps of one kind or another to deal
with the perceived threat posed by this decision. I think different
newspapers have adopted different techniques. In our case it was.-
simply a matter that the basic principle is that you buy time and
you do that by not having the material which is likely to be sought
where they are likely to seek it in the first instance.
The real problem in this situation, as anybody who has had to
deal with it can tell you, is that you have got to-get time to get your-
lawyer there and you have got to find. a way to get into court. A.
search warrant is not a process that allows for that under normall
circumstances.
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89
Mr. KASTENMEIER. So there is a new procedure, go to Jack Landau's
house and seize his reporter's notes there.
Mr. BAILEY. If the reporter's notes are there, they may find them
there. They may not be there. The real difficulty is that with material
of this kind, the newspapers and. its counsel are presented with a
problem because that material has to be retained in many cases as a
protection against libel suits. If you don't have the material, you
'can't defend yourself. I do not know what effect the most recent
Supreme Court decision in Herbert v. Landau will do to that question
,of documentary stuff, but you do have to keep it. It is the best way to
deal with complaints, whether they go to court or not, but you can't
keep it at the office nowadays.
My own newspaper, like many others, has urged and will continue
to urge the enactment, at both Federal and State levels, of broad
remedial legislation to protect all citizens. But if Congress and the
legislatures are unwilling to enact such legislation, virtually all editors
are willing to accept legislation giving the press special protection
against search warrants. If that is the direction the Congress chooses to
take, we believe the formulation worked out by the administration and
embodied in the measure already introduced by the chairman of this
subcommittee is an appropriate one. It has the considerable merit of
dealing with the product, rather than the producer-thus simplifying
the problem of defining who is protected by the first amendment. It
protects the publications, and the working notes, of the "lonely pam-
phleteer" as well as the great metropolitan newspaper or the nation-
wide broadcasting network.
We do have a number of specific suggestions about the language and
I would inquire of the chairman whether he wants me to go through
them or just summarize them. There are four or five points-a couple
of pages here.
Mr. KASTENMEIER. I would be inclined to urge you to go through
them, since at least the principles, whether we ultimately work from
H.R. 3486 or some other bill, it seems to me the points you raise about
the language may be relevant to other bills as well as this.
Mr. BAILEY. Addressing that proposal, as spelled out in H.R. 3486,
we would like to suggest some modifications in present language:
1. On page 2, line 23, after the word "data" and on page 4, line 5,
after the word "data," add the following: "which would constitute a
direct immediate and irreparable injury to the national security."
We believe it would be wise to include this wording, which picks up
the prior-restraint test specified by Mr. Justice Stewart in the Penta-
gon Papers case. We strongly believe that to leave the wording of the
bill as it is now would contravene the court's restriction of the prior-
restraint power of the Federal Government.
2. On those same lines, incidentally, we would raise a question about
the use of "restricted data." We do so because ASNE and its counsel
have serious doubt as to the constitutionality of the section of the
Atomic Energy Act that establishes the "restricted data" classifica-
tion. We are now raising this issue in the brief we have filed amicus
curiae in the Progressive magazine case in the U.S. Court of Appeals
for the Seventh Circuit.
It is our contention that those sections of 42 U.S.C. cited are over-
broad and vague. For example, when those sections discuss the com-
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munication, transmission, or disclosure of "restricted data," we must
look to their definition of "restricted data" as defined in 42 U.S.C..
2014(y):
The term "restricted data" means all data concerning (1) design, manufacture;.
or utilization of atomic weapons; (2) the production of special nuclear material;
or (3) the use of special nuclear material in the production of energy, but shall not
include data declassified or removed from the restricted data category pursuant to
section 2162 of this title.
Under current Government interpretation, it appears that any in-
formation whatever about atomic weapons or special nuclear material,
whatever its origin, is classified-and that its disclosure provides the
basis for criminal sanctions unless and until the Government sanctions.
it.
The crime described is not limited to information about nuclear-
weapons but would even include a journalist's idle musings about the-
nature or use of weapons or the operation and development of nuclear-
power facilities. That could well constitute a crime under the Gover--
ment's current interpretation.
Could stories about Three Mile Island or the studies of victims at.
Hiroshima bring about such a search? I suggest it is not entirely an
academic question. Some 20 years ago, I took part in writing a book-
about the first atomic bomb in which we had extensive access to,
material which I think now, looking at the law, might have subjected'
us to prosecution if somebody had wanted to make trouble.
It is for these reasons that we think the language "which would
constitute a direct, immediate, and irreparable injury to national
security" should be included.
Third, in three places, as I cite there, we would eliminate "there is
reason to believe" and substitute the words "there is probable cause-
to believe."
We note that on page 2, line 10;* page 3, line 17; the act as drafted
uses a "probable cause" test. "Probable cause" has been interpreted'
by the courts and seems to provide a definitive legal guideline, but we-
do not know what is meant by "there is reason to believe," and it
appears to us that the act should be consistent by utilizing "probable
cause" throughout.
4. On page 4, line 19, eliminate the word "appellate" and substitute -
the word "judicial."
It is conceivable to us that a person could well have exhausted all of
his "appellate" remedies at the State level but still have a legal premise
to move into the Federal court system. This would not in the strictest
sense of the word constitute an "appellate" proceeding but would be in
effect a de novo action. Therefore, we feel it is better to utilize the word
"judicial" rather than "appellate."
5. On page 4, eliminate all of line 21 through 24, and on page 5
eliminate all of the material in lines.1 through 5.
The language contained in section (b) on page 4 commencing with..
line 21 through line 24 seems to us to open a "back door" opportunity
to obtain a search warrant. To state "there is reason to believe that
the delay in an investigation or trial occasioned by further proceedings
relating to the subpena would threaten the interests of justice" estab-
lishes a test that we believe is too loose and too easily met.
If you accept our premise as to the looseness and vagueness of this .
test, then there is no need for the additional language on page 5, -
lines 1 through 5.
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6. On page 6, eliminate the entire sentence beginning with the
word "it" on line 5. This language would establish a kind of Nurem-
berg or "good German" defense, and it would be an open door for
anyone to escape liability in this matter. That officer or employee
would pretend that he had anything other than a "reasonable good
faith belief in the lawfulness of his conduct"?
7. We believe an exclusionary rule should be included in this
legislation. We respectfully disagree with the assistant attorney gen-
eral on this point. I am a good deal less optimistic than he seems to
be when he predicts in his testimony to this committee that violations
of the proposed statute "will be, in nearly all cases, inadvertent and
unintentional."
8. We also believe language should be added to insure that State
laws which provide greater protection than the Federal legislation
will not be preempted by the Federal law. Mr. Justice White, in his
majority opinion in Stanford, wrote that "State shield law objections
that might be asserted in opposition to compliance with a subpena
are largely irrelevant to determining the legality of a search warrant
under the fourth amendment." We believe such protection laws
should not be ignored, and that any Federal statute should make
that clear.
9. We are also concerned over Mr. Heymann's comments-at
page 7 of his April 25, 1979, statement to this committee-that
"materials which are held for purposes other than the dissemination
of a form of publication are not protected from a search." I think
the legislation should make completely clear that all documentary
materials in the file of someone who prepares material for publication
are protected-regardless of their source-except for those specifically
exempted.
What concerns us here is that precisely the kind of documents
cited by Mr. Heymann as examples of nonprotected material are often
at the core of important reporting, and that seizure and disclosure of
such materials might often reveal a reporter's sources.
If the committee will indulge me, let me add a couple of closing
thoughts.
First, it may seem that we deal in nothing but worst-case supposi-
tions. Well, we do, and for good reason. Over time, most journalists
learn that sooner or later the authorities, including sometimes the
courts, will create a worst-case situation. And when that happens,
only the most carefully drawn protections will help.
We do not deal in academic hypotheses in these matters. I could
name at least two judges, one prosecutor, and several other govern-
ment officials who would be delighted to embarrass or otherwise
disrupt the operations of my newspaper because of things we have
published about them in the past-things we published not for
the fun of it but as part of our responsibility to a self-governing
community.
Finally, we are dealing here with matters which go to the heart of
our system of government and which have been in contention since
th, earliest efforts to free our self-governance from the weight of
tyranny. Protection of the printer, his papers, and his press against
surprise search and seizure was one of the root causes of the eventual
adoption of the first amendment; and judges on both sides of Stanford
have stated that the fourth amendment arose primarily out of con-
flicts between the Crown and printers.
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92
The case law reaches back to 1765 and to the opinion of the Lord
Chief Justice of England in a case intriguingly entitled Entick v.
Carrington and Three Other King's Men. Lord Camden, ruling for
printer John Entick and against the royal search warrant, said:
Papers are the owner's goods and chattels; they are his dearest property, and
,they are so far from enduring a seizure, that they will hardly bear an inspection;
,and though the eye cannot by the laws of England be guilty of a trespass, yet
-where private papers are removed and carried away, the secret nature of those
,goods will be an aggravation of trespass, and demand more considerable damages
in that respect.
If you will permit a personal note in closing: My ancestors on my
.lather's side came to the Plymouth Colony from England 351 years
:ago. My mother's father, by contrast, came here only about 80 years
;ago, fleeing the oppressions routinely inflicted on the Jews of Eastern
Europe. But despite the time difference, in both cases these men came
-to this country so they could live and speak freely.
We are all, as Franklin Roosevelt once remarked, "fellow immi-
:grants." Well, let us remember why our forebears became immigrants,
and let us preserve as best we can the freedom that drew them to this
.country. The enactment of legislation to offset this misguided and
mischievous ruling will help preserve that freedom.
Thank you very much, Mr. Chairman.
Mr. KASTENMEIER. Thank you, Mr. Bailey, for a most thoughtful
statement.
I will say to my colleagues, the panel consists of four this morning,
-and we hope to hear from them all, but I think it might be appropriate,
if you have questions of Mr. Bailey, to ask them now, or if you wish,
you can hold them for a later point, when all members have con-
. cluded their statements. If you have questions you wish to ask Mr.
,Bailey now, I will yield to you.
The gentleman from Illinois.
Mr. RAILSBACK. I would just as soon wait.
Mr. KASTENMEIER. The gentleman from North Carolina?
Mr. GTDGER. Mr. Chairman, I submit no questions now. There may
be questions later in the course of other testimony that we may be
-prompted to ask Mr. Bailey questions.
Mr. KASTENMEIER. The gentleman from Michigan.
Mr. SAWYER. I don't really have any questions. However, I would
just like to concur in the observation of the gentleman that search
'.warrants are not, contrary to Mr. Justice White's comments, carefully
-scrutinized by magistrates. They are scrutinized by the honest, dedi-
.cated prosecutor, who- is not concerned that the magistrate won't
:issue the warrant, but who is afraid that the evidence he might get as
a result of the warrant may be suppressed in court where the word is
given a very fine examination. But that doesn't really help the person
whose decision may affect the criminal who is being prosecuted with
the material and who inadvertently may defeat the purpose of the
prosecutor. But warrants are routinely issued, and I concur.
Mr. KASTENMEIER. The gentleman from California.
Mr. MATSUI. I will reserve my questions, Mr. Chairman.
Mr. KASTENMEIER. In which case we invite the next member of the
- panel, Mr. Friedheim.
Mr. FRIEDHEIM. Thank you, Mr. Chairman.
I represent, as you indicated, the American Newspaper Publishers
-Association. On beh4,lf of ANPA's 1,339 member newspapers, I want
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to thank this committee for the opportunity to testify on the Supreme
Court's action on Zurcher v. Stanford Daily, a decision which we have
tended to call the quick-warrant-and-ransack decision. This decision
was handed down exactly 1 year ago today.
Mr. Chairman, protection against unlawful search of a newsroom is
essential to the maintenance of a free press, and H. R. 3486 and other
bills similar to it are, we believe, a worthwhile approach to this prob-
lem. The problem is a very simple one. Newsroom searches must be
distinguished from the more usual types of searches for hard evidence.
In a newsroom, the expected object of a search and seizure is not the
instrumentality or fruit of any crime, but merely information. If
reporters and the publishers with whom they work are to cooperate
free of government coercion, then police must not be allowed to waltz
into the newsroom and see what has last been filed under "Local
Political Corruption, Pending" or "Police Misconduct, Pending" or
even "Criminal Trials-Miscellaneous Notes." ANPA believes that
the constitutional distinction between the free press and the govern-
ment must remain unmistakable. To play their proper roles in main-
tenance of a free society, the two must operate separate from one
another. Anything which tends to diminish the independence of the
press from the official authority of the government is a dangerous
development.
Mr. Chairman, 1 year ago the "rule-of-rummage" decision struck
most of the free press-and it still strikes us today-as an outrageous
and erroneous decision that hurts every American citizen.
Thus, legislation in response to the decision should not be "press-
only" in orientation; the rights and liberties which the press exercises
in this area are the rights and liberties of every individual citizen.
ANPA also believes that the free press needs this protection for
another reason: The inherent inhibition on vigourus reporting as long
as this decision is the law of the land.
Every day, Mr. Chairman, newspapers are involved in gathering
information and in reporting to the people about the operation of
government-including the police, the prosecutors and the courts.
Much of this information, as you know, comes from confidential
sources.
This flow of information is vital if the press is to fulfill its watchdog
function for the public, and the flow could slow to a trickle if news-
papers can no longer guarantee confidentiality.
It is perhaps not unfair to note that confidential sources can range
from sheriffs to Senators-even Representatives and Presidents; and
search sites under the court's ruling, it seems to us, might even be the
homes of Members of Congress, not just newsrooms.
And, ANPA notes that the careful structuring of search warrants,
as Mr. Sawyer pointed out, is far from an exact science. Even the
warrant which meets the strictest requirements as to specificity is no
guarantee against an occasional overzealous searcher using the op-
portunity of a newsroom search to rifle and rummage and intimidate
and obstruct indiscriminately.
An unannouced police raid on a newsroom at edition deadline time
might well be so disruptive as to imperil publication itself, producing
de facto the very "prior restraint" which the Supreme Court has
normally ruled impermissible.
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The fact that these dire possibilities have not been realized in the
time since the Court's decision is of no great solace to us. It is largely
due to the quick and proper response of Attorney General Bell, of
several state attorneys general, and of state legislatures around the
country which promptly issued guidelines and rules that reined in the
police power to search the press.
ANPA and the newspaper business appreciate these responsible
actions, but we believe they are but short-term solutions. These
remedies exist-for the most part-at the discretion of those who now
happen to hold office. Lasting protection from the daily threat posed
by the court's decision can come only from statute.
Mr. Chairman, ANPA's concerns in this matter are based in part
on what we have seen happen in other countries. The record is clear
that in those countries where the press has been fettered by govern-
ment, where it has been used as part of a government's investigatory
apparatus, where it functions at the whim of government police-in
those countries neither the press nor the people are free.
Let me turn briefly now to the provisions of H.R. 3486. May I say
that ANPA concurs in all of the suggestions which Mr. Bailey made
to you a few moments ago. We recognize that the Justice Department
and representatives of this subcommittee and their counsel have
labored long and hard to develop a piece of legislation which would
protect those involved in first amendment activities from unnecessary
and unreasonable third-party searches.
ANPA strongly supports the approach of this bill, which does not
protect just newspaper reporters, or just broadcast reporters, or just
magazine writers, but which also covers a great many others involved
in the development and promulgation of ideas.
Our first observation, however, remains our concern that the legis-
lation stops there. We urge the subcommittee to expand the bill to
cover, at a minimum, other professionals accorded a privilege of con-
fidence in our society-and, preferably, to cover all nonsuspect, third
parties.
Other key press organizations not represented here today agree with
us on that point, including the National Newspaper Association, and
I have included comments from NNA's president in my full written
statement.
Mr. Chairman, ANPA also generally supports the approach of
H.R. 3486 which would prohibit third-party searches for documentary
materials and which would require, instead, production of such
materials by subpena.
Of course, the bill provides several exceptions under which searches
and seizures might occur. ANPA does not disagree with the conditions
set forth in most of those exceptions, but we urge that the bill uni-
formly provide a test of "probable cause to believe" that those condi-
tions exist. A test of "reason to believe," as Mr. Bailey pointed out,
which appears in various places throughout the bill, seems to us to
equate to mere suspicion on the part of law enforcement officers
We believe that the first amendment values at stake here are far too
sensitive to be left vulnerable to mere hunch and conjecture presented
to a magistrate in an ex parte context.
One of the exceptions would allow police to rummage through
documents in order to find information relating to national defense,
information that is classified or restricted data. We believe, as Mr.
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95
Bailey said, that this exception is overbroad. It allows for Govern-
ment seizure of documents without a determination of their sensi-
tivity to national security and without assessment of whether they
legitimately deserve to be classified.
Under this approach, Mr. Chairman, a "secret" stamp sitting
on the desk of some bureaucrat could become an instrument of
authorization for a newsroom search.
ANPA urges adoption of an amendment to allow searches only
for such information which, if disclosed, would cause "a direct, im-
mediate and irreparable injury" to national security.
ANPA also is concerned that some sections of the bill would operate
in such a way as to deny newspapers their due process rights to pursue
an appeal through State courts and into Federal courts if necessary.
The exception contained in section 2 (b) (4) (B), which Mr. Bailey also
mentioned, is so broad and ambiguous that it may undermine ,he
protections this bill is designed to afford.
This exception would allow for a search when materials have not
been produced in response to a court order directing compliance with
a subpena, and where there is reason to believe that a delay in investi-
gation or trial occasioned by further proceedings relating to the sub-
pena would threaten the interests of justice.
It seems to us it would be easy to read this section as an authori-
zation for a search immediately upon the denial of a motion to quash
the subpena. Thus, this section could effectively preclude appellate
or other judicial review of a trial court's denial of the motion to quash,
eviscerating the due process rights of the press. We urge the sub-
committee to delete this provision of the bill entirely.
Finally, we would like to address the broad scope and effect of H.R.
3486. The bill rightfully recognizes that any effective remedial legis-
lation must be applicable not only to Federal, law enforcement offi-
cials, but also to officials of State and local governments. However, we
believe that Congress should do nothing to subvert the efforts already
made in State legislatures across the country to remedy this decision.
Congress should not diminish the safeguards which have been adopted
in any individual State.
Mr. Chairman, I thank you for the opportunity to present ANPA's
views to the subcommittee. We are confident that the committee
will consider the legitimate concerns of the free press, which is, of
course, indispensable to our free society.
Thank you.
[The prepared statement of Mr. Friedheim follows:]
STATEMENT OF JERRY W. FRIEDHEIM, EXECUTIVE VICE PRESIDENT AND GENERAL
MANAGER, THE AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION
Mr. Chairman, I am Jerry W. Friedheim, Executive Vice President and General
Manager of the American Newspaper Publishers Association.
ANPA is a trade association whose 1339 member newspapers comprise more
than 91 percent of the daily and Sunday newspaper circulation in the United
States. Several non-daily newspapers also are members.
On behalf of our membership, I thank the chairman and members of the sub-
committee for this opportunity to testify on legislation to remedy the Supreme
Court's "quick-warrant-and-ransack" decision in Zurcher v. The Stanford Daily-
a decision handed down exactly one year ago today.
Mr. Chairman, protection against the unannounced, law-officer search of a
news room is essential to the maintenance of our free press. HR 3486, which is
before this subcommittee, is one worthwhile approach, and we will offer some
specific comments on that bill.
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The problem is a very simple one: newsroom searches must be distinguished
from the more usual types of searches for "hard evidence."
In a news room, the expected object of a search and seizure is not the instru-
mentality or fruit of any crime, but merely information. In order to carry out such
a search, officials want to examine irrelevant documents in order to find the ones
subject to seizure. It is entirely likely that-while officers are rummaging through
many documents to locate those, sought-sensitive information and confidential
sources will be exposed which have no bearing at all on the specific investigative
intent of the searches.
If reporters and the publishers for whom they work are to operate free of govern-
ment coercion, then police must not be allowed to waltz in the newsroom door to
see what has last been entered in a file of "Local Political Corruption, Pending"
or "Police Misconduct, Pending" or even "Criminal Trials-Miscellaneous
Notes."
ANPA believes that the constitutional distinction between the free press and
the government must remain distinct. To play their proper roles on maintenance of
a free society, the two must operate separate from one another. Anything which
tends to diminish the independence of the press from the official authority of the
government is a dangerous development, indeed.
Mr. Chairman, ANPA appeared before the Subcommittee on the Constitution
of the Senate Judiciary Committee last year to express our views on the need for
legislation in this area. Those views remain essentially unchanged today.
As ANPA Chairman and President Allen H. Neuharth said, in the wake of the
decision a year ago, the court's decision:
". . puts a sledgehammer in the hands of those who would batter the American
people's First Amendment rights. It authorizes harassment and intimidation of the
public's right to know, and it literally and legally picks the lock that protects the
exercise of a free press and, in effect, of free speech." And, Mr. Neuharth continued:
"I am not arguing that the press should be judge, jury and a law unto itself.
But, if a newspaper possesses legitimate evidence, that material can and should be
obtained only through the subpoena process and not through a search-first-ask-
later policy. I am sure the free press will have the help and understanding of most
American law enforcement officers; because they do not wish to become storm
troopers any more than Americans wish to be stormed."
There were many similarly vigorous press responses. The "rule-of-rummage"
decision struck most of the free press then, and still strikes us today, as an out-
rageous and erroneous decision which hurts every American citizen.
Thus, legislation in response to the decision should not be "press-only" in
orientation; the rights and liberties which the press exercises in this area are the
rights and liberties of every individual citizen.
ANPA also believes that the free press needs the protection for another reason.
That is the inherent inhibition on vigorous reporting as long as this decision is
the law of the land.
Every day, newspapers are involved in gathering information and in reporting
to the people about the operation of government-including the police, the
prosecutors and the courts. Much of this information comes from confidential
sources-people who would not publicly provide this information about alleged
abuses or outright criminality if they knew the police could identify them by
using the newspaper's own files.
This flow of information-vital if the press is to fulfill its watchdog function
for the public-could slow to a trickle if newspapers can no longer guarantee
confidentiality.
Similarly, the investigatory spirit of a newspaper may be sapped in some
instances. It would be regrettable, but understandable, for a reporter to be
reluctant to pursue leads if he knew that perhaps the subject of his story, or the
subject's friends, could obtain a warrant and uncover all of the reporter's infor-
mation and sources. It is perhaps not unfair to note that confidential sources
can range from sheriffs to senators-even representatives and presidents; and
search sites under the court's ruling might even be the homes of members of
Congress, not just newsrooms.
And, AN PA notes that the careful structuring of search warrants is far from
an exact science. In many cases, the magistrates issuing the warrants would be
laymen. Due consideration of First and Fourth Amendment protections easily
could get lost in the ex-parte procedure between a magistrate and the law enforce-
ment officials with whom he regularly deals.
Of course, even a warrant which meets the strictest requirements as to specificity
is no guarantee against the occasional overzealous searcher using the oppor-
tunity of a newsroom search to rifle and rummage and intimidate and obstruct
indiscriminately.
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An unannounced police raid on a newsroom at edition deadline time might
well be so disruptive as to imperil publication itself, producing de facto the very
"prior restraint" the Supreme Court has normally ruled impermissible.
The fact that these dire possibilities have not been realized in the year since
the court's decision is of no solace. It is largely due to the quick and proper
response of Attorney General Bell, several state attorneys general, and state
legislatures around the country that promptly issued guidelines and rules which
reined in the police power to search the press. ANPA and the newspaper business
appreciate these responsible actions, but we believe they are but short-term
solutions. These remedies exist-for the most part-at the discretion of those who
hold office. Lasting protection from the daily threat posed by the court's decision
can come only from statute.
Mr. Chairman, ANPA's concerns in this area are in part based on what we
have seen happen in other countries. ANPA, through a variety of active affiliations
with international press organizations, plays an integral role in world press
freedom matters. This experience makes us all the more appreciative of our free
society with its independent press. For the record is clear that in those countries
where the press has been fettered by government, where it has been used as
part of a government's investigatory apparatus, where it functions at the whim of
government police-in those countries neither the press nor the people are free.
Let me turn now to HR 3486.
ANPA recognizes that Justice Department officials and representatives of this
subcommittee have labored long and hard to develop a workable piece of legisla-
tion which would protect those involved in First Amendment activities from
unnecessary and unreasonable third-party searches.
H.R. 3486 provides a no-search rule for the work-products of those involved in
protected First Amendment activities. And, it greatly restricts the power to
search for and to seize all other documents and information in the possession
of those engaged in such activities. The bill properly applies only to third-party,
non-suspect searches, and only to "materials upon which information is recorded."
Protection is not extended to instrumentalities or fruits of crime.
ANPA strongly supports the approach of this bill which does not portect just
newspaper reporters, or just broadcast reporters to just magazine writers, but
which also covers a great many others involved in the developiment and exposition
of ideas.
Our first observation, however, remains our concern that the legislation stops
there. We urge the subcommittee to expand the bill to cover, at a minimum., other
professionals accorded a privilege of confidence in our society-and, preferably,
to cover non-suspect third parties.
Other key press organizations agree with ANPA on this point. As one example,
let me quote briefly from a letter from the president of the National Newspaper
Association, James W. Gill of the Hemet, California, News. Mr. Gill says:
"As you know, the National Newspaper Association represents the interests of
about 500 small-city daily and 5,000 community weekly newspapers published
throughout the United States. Our Board has considered very carefully the matter
of legislation in this area, and we feel very strongly that the Congress must make
any legislative protection as broad as possible. `Press-only' relief is not our goal,
although quite naturally we are worried about the impact on community journal-
ism-its ability to ferret out local issues of crucial importance to readers-if local
police are free to roam through files and records. But we think the case for broad,
third-party relief in this area is a sound one and we support it."
Mr. Chairman, ANPA also generally supports the approach of HR 3486 which
would prohibit third-party. searches for documentary materials and which would
require, instead, production of such materials by subpoena.
However, the bill provides several exceptions under which searches and seizures
might occur. ANPA does not disagree with the conditions set forth in most of
these exceptions, but we urge that the bill uniformly provide a test of "probable
cause to believe" that those conditions exist. The lesser test of "reason to believe
which appears in various places throughout the bill, equates to mere suspicion on
the part of the law enforcement officers. The First Amendment values at stake
here are far too sensitive to be left vulnerable to mere hunch and conjecture, pre-
sented to a judge or magistrate in an ex parte context.
One of the exceptions to the prohibition against searches for work product,
and to the limitation on searches for other documents, would allow police to
rummage through documents in order to find information relating to national
defense, information that is classified, or data that is restricted under the espionage
laws and related statutes.
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ANPAbelieves this exception is overbroad. It allows for the government seizure
of documents without a determination of their sensitivity to national security
and without assessment of whether they legitimately deserve to be classified.
Under this approach, a "secret" stamp on the desk of a bureaucrat becomes the
instrument of authorization for a newsroom search.
Thus, ANPA urges the subcommittee to adopt the standard articulated by the
Supreme Court in the Pentagon Papers case. Sections 2(a)(1) and 2(b)(1) should
be amended to allow searches only for restricted information which if disclosed,
would cause "a direct, immediate and irreparable injury" to the national security.
Section 2(b)(4) (A) would allow a search and seizure if there existed a court
order for complaince with a subpoena and appellate remedies for the subpoena
had been exhausted. ANPA recognizes the legitimate aim of this exception-to
preserve the authority of the court and its power to compel proper production of
information. But ANPA is concerned that this section could be read to defeat
due process rights of reporters and others engaged in First Amendment activities.
It is reasonable to suppose that a newspaper, faced with a subpoena from a state
court, might file a motion to quash. It is equally reasonable to suppose that judicial
action on this motion might be litigated through the state's appellate process.
Upon exhaustion of appellate review, a court could issue an order directing
compliance with the subpoena. Yet, the newspaper may still be faced with im-
portant constitutional and collateral questions concerning the subpoena which
were excluded from the appellate actions by the state's procedural rules but which
could be raised in federal court. Often, determinations of these issues may be
paramount to a newspaper's response to a subpoena.
In order to preserve full due process rights, and in order to prevent abuse of this
exception to the no search protections of HR 3486, ANPA urges the subcommittee
to replace the word "appellate" with the word "judicial."
ANPA further is concerned that the exception contained in Section 2(b) (4) (B)
is so broad and ambiguous that it may undermine the protections HR 3486 is
designed to afford.
This exception allows for a search when materials have not been produced in
response to a court order directing compliance with a subpoena, and where there
is reason to believe that the delay in an investigation or trail occasioned by further
proceedings relating to the subpoena would threaten the interests of justice.
It would be easy to read this section as an authorization for a search immediately
upon the denial of a motion to quash the subpoena. Thus, this section could
effectively preclude appellate review of a trial court's denial of a motion to quash;
eviscerating the due-process rights of the press. ANPA urges the subcommittee
to delete entirely this provision of the bill.
ANPA also takes issue with the complete defense to civil remedies provided in
Section 4(a) (2). This defense allows complete vitiation of liability for any law
enforcement official who has conducted a newsroom search with "a reasonable,
good-faith belief in the lawfullness" of the search.
It is essential to keep in mind that the damage done by a newsroom search
is an irretrievable intrusion upon the free exercise of First Amendment freedoms.
It is simply unacceptable to render these freedoms subject to some hoped-for
"reasonable good faith" of the police. It is a hazard which a free press and a free
people dare not risk. It is, simply, the Russian way, not the American way.
ANPA urges the subcommittee to delete this defense. By striking the defense
and thereby buttressing civil liability, the subcommittee would properly encourage
law-enforcement agencies to conduct more-thorough investigations before a
warrant is secured-a result that would benefit everyone.
Finally, ANPA would like to address the scope of H.R. 3486. The bill rightfully
recognizes that any effective remedial legislation must be applicable not only to
federal, law-enforcement officials, but also to officials of state and local govern-
ments. However, ANPA believes that Congress should do nothing to subvert the
efforts made in state legislatures across the country to remedy this intolerable
decision. California and Connecticut already have enacted laws on this subject,
and bills currently are pending in many other state legislatures. Congress should
not diminish the safeguards adopted in any state.
Mr. Chairman, I thank you and the members of the subcommittee for this
opportunity to present ANPA's views. We are confident that the committee will
duly consider the legitimate concerns of the free press which is indispensable to
our free society.
Mr. KASTENMEIER. Thank you, Mr. Friedheim.
Are there any questions of Mr. Friedheim at this point?
Mr. Sawyer?
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99
Mr. SAWYER. From the beginning I have had somewhat the same
problem that you and Mr. Bailey enunciated; namely, the narrow
scope of this bill. As I understand it, the obvious reason for the
narrow scope is to try to reach State activities as well as Federal, with
Federal cases comprising approximately 10 percent of the warrants
issued.
What do you think of the feasibility of adding a new section to the
bill, which would cover all cases under Federal jurisdiction? And
secondly, I have been wrestling with the question of how to reach
State law enforcement on a broad basis; and other than perhaps by
providing an exemplary statute that States may emulate one way or
the other, I don't see how it can be done.
Do you have any ideas on that?
Mr. FRIEDHEIM. Mr. Sawyer, I think we would regard that as an
improvement in the bill as now drafted, if you found that you could
broaden the coverage of H.R. 3486. I have no doubt that that would
have an effect on the State legislatures which are now wrestling with
this problem. It would certainly be useful to those of us who believe
that is important. And, it would show State legislators that you felt
broad coverage was important on the Federal level.
We think there are some ways that you might be able to address this
problem while still utilizing legislation like H.R. 3486. We think for
example, that maybe the definition of "work product" could be ex-
panded so that it included material created, if you will, or used by some
of these other people who enjoy confidential privileges in our society-
doctors, lawyers, psychiatrists. That might be one way to approach it.
Mr. SAWYER. But even beyond the confidential privileges, I can
conceive of a situation where the innocent tourist with a camera in
Washington, D.C., takes a picture of a riot and goes back home.
Under the theory of the Zurcher case, in the middle of the night his
house is broken into to get his negative, even though he is a totally in-
nocent party. Similarly, the community bookkeeper who does a book-
keeping service for a number of businesses would be subject to a
random search under the theory of the Zurcher case. So there are a lot
of people that would fall into the almost unrestricted category of
innocent people, who should be afforded some type of protection.
Therefore, I think legislation should cover all innocent third parties
who have neither a peculiar relationship with the guilty party that
might lead to probable cause that they might destroy or conceal
evidence, or are themselves suspects.
I just can't see, except by limiting it to the press and the interstate
commerce theory, how we could affect State law enforcement that
broadly.
Mr. BAILEY. Could I suggest, Mr. Chairman, in response to Mr.
Sawyer's inquiry-and this is not my idea; this is an analysis that
Senator Mathias sent me earlier in the year. He suggests the answer to
that question is that Congress could rely not only on the commerce
power but on its authority under the spending powers to condition
State receipt of Federal police-related funds on the adoption of
special procedures governing the searches of all nonsuspects and on
section 5 of the 14th amendment. There is an awful lot of Federal
money going into law enforcement these days. This is not my thought,
but this is one answer to that question that you raise.
Mr. SAWYER. Thank you.
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Mr. LANDAU. Congressman, I think Mr. Bailey makes a good point.
When Congress passed the Voting Rights Act, Congress said it was
going to implement under section 5 the right to vote, the federally
guaranteed right to vote, because it felt that vote was an extremely
important right, and it implemented the Voting Rights Act, and as
you know, the Southern States sued under Katzenbach v. Morgan, and
the Supreme Court said that the Congress has the right to pass legis-
lation under section 5 to implement the fundamentally guaranteed
rights of the Constitution.
That being the case, it would seem very peculiar for the Justice.
Department, which of course argued in favor of the validity of that
law, to come back now and say that the Congress does not have the
right under section 5 to implement the protections of the fourth
amendment.
Mr. SAWYER. The problem here is that the Supreme Court has ruled
that fourth amendment protection doesn't apply. Thus, I believe it
would be pretty hard to hang it on the fourth amendment now that
the Supreme Court has interpeted it narrowly in the Stanford case.
Mr. LANDAU. But that is without a congressional determination.
All things being equal, the court interpreted it its way, but if Congress
steps in and says, "we feel that this is an unreasonable search under
the fourth amendment," there is no reason why Congress can't step
in just the way Congress stepped in and said, "We think literacy
tests are unreasonable." The Supreme Court upheld literacy tests in
the past. It wasn't until Congress exercised its jurisdiction under
section 5 to come in.
The second hook in the commerce clause is that when Congress
passed the 1968 omnibus crime control bill, it not only prohibited
wiretapping, which obviously is in commerce, but it prohibited eaves-
dropping of private residences and offices under two separate stand-
ards: One, any office or residence which was used in commerce, and
even a further extension of your power. You prohibited eavesdropping
if there was reason to believe that the device came through commerce.
Now, if you can stop, if you can protect the privacy of an individual
home based on a suspicion that the device used may be in commerce,
there is hardly any home in the country that doesn't have something
that comes in commerce, and this is your act, and once again the
Justice Department has defended the constitutionality of it, so I find
it rather ironic that Mr. Heymann comes up here arguing to the
Congress that it doesn't have precisely the powers which the Justice
Department has argued it has under Katzenbach v. Morgan under the
1968 act.
Mr. SAWYER. Thank you.
Mr. KASTENMEIER. Are there any other questions of this witness
at this time?
Mr. GUDGER. No further questions, Mr. Chairman, but I think
these last remarks are certainly pertinent with respect to earlier testi-
mony which we have had on this same point, and I think it well to
let these witnesses know that we have already gone into section 5 of
the 14th amendment in earlier testimony.
Mr. KASTENMEIER. The scope of my proposal here is that horizon-
tally should it include: one, communicators essentially under the first
amendment; two, other professionals; or three, everybody that being
the widest horizontal region, and vertically should it be Federal and
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State, local? If so, under what theory? These are obviously important
questions.
Mr. BAILEY. I think the exemplary force should not be underesti-
mated. To follow out Mr. Sawyer's thought, the exemplary force of
the Federal statute is not to be underestimated in terms of the State
legislature.
Mr. KASTENMEIER. One of the witnesses argued-and I will not
ask you to respond to this, but you can in due course-the attorney
general from Utah said essentially this is not a Federal problem.
The cases are not essentially Federal in character. In fact, they are,
by and large, Californian, if you analyze the 16 cases, most recent cases.
They tend to center in California, and that, as a result, this ought to
be a State matter; as Wisconsin is dealing with the question, pre-
sumably California is, and really we shouldn't be interested in the
questions to the extent of writing Federal legislation because of that.
That is his analysis and his advice to us, and in due course, I will ask
you to comment on that.
Mr. BAILEY. Could I respond to that right now, or would you rather
wait?
Mr. KASTENMEIER. No, Mr. Bailey, you may.
Mr. BAILEY. This is a hard case, but it is a real case, and perhaps
it answers the point.
Several years ago two FBI agents were shot to death on an Indian
reservation in South Dakota. We had a reporter and a photographer
in the reservation at the time following it. The reporter got a lot of
information. The FBI was understandably anxious to pursue this case.
They lost two of their agents who were ambushed and shot to death.
They wanted very much to have some'converstation with the reporter.
They wanted to know who he had been talking to and on what he had
based certain things in his story. It was a very difficult situation.
We were not able to give them satisfaction as they wished it because
we suggested that it would be appropriate for them to pursue other
avenues before they tried to breach confidential source material. There
was no shield involved here. It was simply an assertion on my part,
basically, that before they come to the reporter, they ought to see if
they could get the information elsewhere.
They got it elsewhere, and those cases have been closed. But if they
had had the power then to come at us with a warrant, they would have
done it. I have no doubt about it, having talked to the two gentlemen
from the FBI who came in to discuss the matter with me when they
wanted to talk to a reporter. They would not have bothered to exhaust
other sources. They would have simply gone and got a warrant, and
they would have got it because if the FBI goes to a Federal judge and
says two of our men were killed and we want a search warrant to get
evidence to arrest and convict the people who did it, the judge is
going to give them that warrant. They would have been in with a
warrant, and they would have gone through our office. There is no
question about it, and I don't make a judgment about that. But that
is a specific case in point that bears on the point raised by the State
officials in courts, Mr. Chairman.
Mr. FRIEDHEIM. If I could comment on that also. We find it a little
bit remarkable that any State attorney general would indicate that
because something happened recently in California, it has no appli-
cability to the rest of our society. It might not seem the same way if
the shoe were on the other foot.
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The fact of the matter is, however, that even though some of these
instances have arisen in California, there have been instances in other
places. Mr. Bailey cited the Minnesota situation in which the law
office might be searched. We have had threats, not carried out, but
threats clearly made to newspapers in Philadelphia by a district
attorney who said he might search the newspaper, and in Florida
where the Pensacola Journal was challenged by the sheriff who said
he just might come down and search.
So we would disagree with the attorney general of Utah that this
exists only in California. We would also disagree that just because it
exists in California we shouldn't address it. And, we would also point
out that there are Federal statutes and Federal law enforcement offices
involved here. So, you have every right to address this problem, and
we urge you to do so.
Mr. KASTENMEIER. The reason I cited the attorney general was so
that you understand what the other view is; namely, that this is a
matter that ought to be pursued individually by the States.
Mr. BAILEY. I think the editor of that magazine in your district
might be able to raise a question about whether a Federal search
warrant might have affected him. If the Federal Government felt that
he was violating the law if he had published that article in Progressive,
and they had wanted to print it, and they wanted to prosecute under
the Atomic Energy Act, under the law as it now stands as laid in
Zurcher, I believe they could have rummaged his office with a warrant.
Mr. KASTENMEIER. I was going to ask you that. I didn't mean to
pursue it at the time. Whether in the FBI South Dakota case or in that
case, why would a search warrant be unavailable to the Justice Depart-
ment or the FBI?
Mr. BAILEY. Well, the case that I spoke of arose prior to the holding
by the court and I don't know the extent to which the FBI keeps up on
this kind of thing, but the holding in that case at that point was the
circuit court holding, if I remember correctly-the district or the
circuit court holding, and I don't know. The matter had not yet gone
before a grand jury and, at least I, not being a lawyer. In the case of
the State of Minnesota, they don't have subpena under present State
statutes in an investigative stage.
They don't have warrant power and they don't have subpena power.
They have warrant power, but they don't have subpena power in a pre-
grand-jury case. The grand jury can issue subpenas. The prosecutor
said they can't, prior to that time, and that is where that Wisconsin
approach would be an intriguing one because it would definitely extend
power back to an earlier stage of the law enforcement process.
Mr. FRIEDHEIM. Mr. Chairman, those of us in the press who are
really cognizant of the views of the law enforcement officers are among
those who champion an independent judiciary and have supported
law enforcement officers across the country. We understand that they
don't want to be inhibited in pursuing criminal justice. We' feel, how-
ever, that in our society the purpose of the law is not to make it easier
for police forces to conduct searches of the citizenry, but to make it
difficult for them to do so.
Mr. KATZENMEIER. I understand. As a matter of fact, I am not sure,
really, that the view of the attorney general of Utah was antagonistic.
He wasn't saying we shouldn't have a law forbidding such an easy
search, but, rather, that it was really a matter of the States to de-
termine that for themselves.
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He didn't reach a judgment that some such law should eventuate.
May we call on Mr. Robert Lewis, president of the Society of Profes-
sional Journalists?
Mr. LEWIS. Thank you, Mr. Chairman, for this opportunity to
present the views of the Society of Professional Journalists, Sigma
Delta Chi, on search-and-seizure legislation.
The Society of Professional Journalists is the oldest, largest, and
most representative organization serving journalism. Founded in
1909, we have 300 chapters and nearly 35,000 members in all branches
of communications. About 20 percent of our members are students
and the rest are professionals.
I commend the subcommittee's efforts to find a- legislative remedy
to the problems raised by the U.S. Supreme Court's Zurcher decision.
While there has been no proliferation of newsroom searches since the
May 31, 1978, decision, the threat to a free press, nonetheless, exists.
Police shouldn't have the license to search news files except under
limited circumstances.
As long as they have that license, the result will be a chilling effect
on journalists and their sources.
We would like to believe the Constitution is all -the protection the
press needs to fulfill its role as the public's watchdog. But the damage
from the Zurcher decision is too great to ignore. We support legisla-
tive relief with the hope this does not establish a precedent for Federal
regulation of the press.
The ingredients which we believe are essential in such a bill include
the following: It should apply at all law enforcement levels, par-
ticularly the local level where the potential for abuse may be greatest.
Local magistrates are apt to give priority to any number of factors
other than first and fourth amendment rights when considering ap-
proval of a search warrant. Local officials feel the sting of a crusading
newspaper or broadcaster more directly than their State and Federal
counterparts, and the temptation to retaliate may be greater.
Finally, small news organizations have fewer resources to fight
intimidation through court challenges. They are the bedrock of
American journalism and their protection will be assured by a law
that covers all law enforcement agencies.
The bill, in our view, should apply to all innocent third parties.
We seek no special privilege for the press. But more to the point,
surprise police searches of persons not suspected of wrongdoing is
foreign to this country's concept of justice and freedom.
I think it is interesting that, for 200 years, we have gone along on
the assumption that the Constitution barred searches of innocent third
parties. And now, 1 year ago, the Supreme Court said we were wrong
all this time, that the Constitution does not prohibit it. I think it is
incumbent on Congress to close the loophole that was raised in the
Zurcher decision.
I would like to concur in Mr. Bailey's observation on what we feel
are deficiencies in the administration's bill and I will not go into it
further except to note that I would hope it would be the subcommit-
tee's intent to report out a bill that would allow classified documents,
such as the Pentagon papers, to be published, and would not bar the
publication of documents just because they have been classified.
The practice of overclassifying Government information continues
despite efforts by President Carter and others to limit its scope.
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In a parallel case-The Reporters' Committee for Freedom of the Press
v. A.T. c T.-the Supreme Court held last fall that Government
agencies may subpena long-distance telephone records of reporters
and news organizations without their knowledge or consent.
The secret subpenas had been obtained by the Nixon administration
in the early 1970's in an attempt to identify the confidential sources
of several Washington journalists.
While secret subpenas of telephone records may be justified in
criminal investigations, we believe it is indefensible to subject re-
porters and news organizations to such subpenas when they are not
suspected of criminal misconduct. And the society's board, at a
meeting in Denver recently, voted to urge this. subcommittee to extend
the safeguards, against indiscriminate newsroom searches to also in-
clude telephone record fishing expeditions.
Finally, for several years, the society has endorsed Federal and
State shield laws designed to protect the confidentiality of journalists'
news sources, and we would urge you to consider incorporating such
a provision in this bill.
Thank you.
[The prepared statement of Mr. Lewis follows:]
STATEMENT OF ROBERT LEWIS, CHAIRMAN, FREEDOM OF INFORMATION COM-
MITTEE, SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI, CON-
CERNING SEARCH AND SEIZURE
Thank you Mr. Chairman for this opportunity to present the views of the
Society of Professional Journalists, Sigma Delta Chi, on search and seizure legisla-
tion. My name is Robert Lewis, I am a Washington correspondent for Newhouse
News Service and chairman of the Society's Freedom of Information Committee.
The Society is the oldest, largest and most representative organization serving
journalism. Founded in 1909, we have 300 chapters and nearly 35,000 members
in all branches of communications. Twenty percent of our members are journalism
students, 80 percent are professionals.
I commend the subcommittee's efforts to find a legislative remedy to the prob-
lems raised by the U.S. Supreme Court's Zurcher decision. While there has been
no outpouring of newsroom searches since the May 31, 1978, decision, the threat
to a free press nonetheless exists. Police shouldn't have the license to search news
files except under limited circumstances. As long as they have that license, the
result will be a chilling effect on journalists and their sources.
We would like to believe the Constitution is all the protection the press needs to
fulfill its role as the public's watchdog. But the damage from the Zurcher decision
is too great to ignore. We support legislative relief with the hope this does not
establish a precedent for federal regulation of the press.
The ingredients which we believe are essential in such a bill include the following.
It should apply at all law enforcement levels, particularly the local level where the
potential for abuse may be greatest.
Local magistrates are apt to give priority to any number of factors other than
First and Fourth Amendment rights when considering approval of a search war-
rant. Local officials feel the sting of a crusading newspaper or broadcaster more
directly than their state and federal counterparts, and the temptation to retaliate
may be greater. Finally, small news organizations have fewer resources to fight
intimidation through court challenges. They are the bedrock of American journal-
ism and their protection will be assured by a law that covers all law enforcement
agencies.
The bill, in our view, should apply to all innocent third parties. We seek no
special privilege for the press. But more to the point, surprise police searches of
persons not suspected of wrongdoing is foreign to this country's concept of justice
and freedom.
We believe it is important to carefully define the circumstances under which
a newsroom search warrant could be obtained. I hope it would not be your intent
to prohibit the publication of government documents such as the Pentagon Papers
that pose no threat to the national security and yet have been classified. The
practice of over-classifying information continues despite efforts to limit its
scope.
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In Section 2(a)(1) and Section 2(b)(1) of the Administration's bill, seizure of
material "relating to the national defense, classified information or restricted
data" would be permitted. It would be better to limit seizure to cases involving
a direct, immediate and irreparable injury to the national security.
The administration bill authorizes seizure of non-work product documents
that had been subpoenaed but are withheld pending court challenges of the sub-
poena, if "there is reason to believe that the delay in an investigation or trial ...
would threaten the interests of justice." (Section 2(b) (4) (B) ). The phrase "threaten
the interests of justice" is vague and should be replaced with more specific lan-
guage.
The administration bill authorizes civil damages for illegal searches of news-
rooms. But it virtually nullifies this provision by providing as a defense an officer's
"reasonable good faith belief in the lawfulness of his conduct." (Section 4(a) (2)).
We would urge that this language be deleted.
In a parallel case (The Reporters Committee for Freedom of the Press v. AT &T,
the Supreme Court held last fall that government agencies may subpoena long-
distance telephone records of reporters and news organizations without their
knowledge or consent. The secret subpoenas had been obtained by the Nixon
Administration in the early 1970's in an attempt to identify the confidential
sources of several Washington journalists.
While secret subpoenas of telephone records may be justified in criminal in-
vestigations, it is indefensible to subject reporters and news organizations to
such subpoenas when they are not suspected of criminal misconduct. We urge you
to extend the safeguards against indiscriminate newsroom searches to telephone
record fishing expeditions.
For several years the Society has endorsed federal and state shield laws designed
to protect the confidentiality of journalists' news sources. We urge you to cin-
sider incorporating a shield provision in the search and seizure bill. Thank you.
Mr. KASTENMEIER. Thank you, Mr. Lewis.
May I comment on the last point before going on to our last
witness?
This subcommittee worked long and hard on what was then termed
newsman's privilege. In fact, the gentleman from Illinois, Mr. Rails-
back, as well as others on the subcommittee, including myself, worked
very hard to develop an approach during two Congresses and we
wedded some of our ideas together. We did accept a modified two-tier
approach but we thought it went well beyond the minority decision
in that case.
My colleagues, Mr. Railsback, Mr. Cohen, accepted ultimately the
principle that it must apply throughout the country, not Federal only,
but Federal and State. That was an important concession on that
part, and we had a reasonably good bill developed, although it was
not possible to gain a consensus among the news community.
It is very important, just as in dealing with the civil rights on the
basis of racial discrimination, that the community it affects be sup-
portive of the effort. If that doesn't come about, then you have no
solution. We found that the news community was very badly split on
the issue and the longer discussion went, the more apprehension there
was on the question of defining what constituted a newsman. Plus
other nagging questions of, can we really rely on the first amendment
in subsequent decisions to vindicate our own view of what it purports
to cover.
I think that really took over, and I think there were at least four
separate definable views-who didn't want any bill at all whatsoever
because they thought the press already had too many privileges and
that the decision was appropriate, as well as those that wanted, on
the other hand, no legislation on the theory that this was really a
matter of the first amendment which ultimately would be vindicated.
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So eventually we conceded the point that we do not have enough
of a consensus to move forward and the effort came to a slow halt. I
must say, however, for those of you who went through this, we all had
sort of mutuality of sympathy for one another's views and efforts.
I did raise a question with the Assistant Attorney General, insofar
as I thought it was relevant, that in the question of search governed
presently by guidelines the question of recognizing the privilege and
writing guidelines down from a Justice Department standpoint, if they
were analogous and if in fact the Justice Department decided to
embrace a legislative approach in the search question, particularly one
largely tied to the first amendment to news and communication, then
it opened the question again whether the Justice Department view
was that maybe we should be looking at the corollary for a legislative
approach in terms of newsman's privilege.
So to some extent it is an open question although I would be unfair
if I didn't suggest I think it is fraught with more difficulties legis-
latively hopefully than the search and seizure question before us.
Mr. LEWIS. Mr. Chairman, I think you will find, in view of some of
the decisions that have come down in the last year, that -support in
the news community for a Federal shield law has increased. And I
think one of the organizations represented here has recently switched
its stand on that.
Mr. BAILEY. Mr. Chairman, I was going to say if you and your
colleagues wish to wade into that swamp again this year, I think you
would find somewhat more consensus in the press than before. ASNE,
which has never taken a formal position on the shield law and which
reflects some of the crosscurrent you are talking about, the board of
directors earlier this month, by a 12 to 3 vote, came out and endorsed
the idea of a Federal shield law, which is a substantial change in
position for that organization, and I think that shift is reflected in
other newsmen's thinking.
We have taken a lot of lumps in the last few years.
Mr. LEWIS. I think what has happened is, we used to think that the
first amendment was our shield; we didn't need anything more than
the first amendment. Now the Supreme Court, in both search and
seizure and in the shield area-the Farber case-has stripped us of that
protection and it appears if we are to have any protection, it is going
to be from your hands.
Mr. RAILSBACK. Would you yield, Mr. Chairman?
Mr. KASTENMEIER. I yield.
Mr. RAILSBACK. I remember so well what the chairman of the sub-
committee has just recounted and I believe it would be very, very help-
ful if some of you could take the lead and maybe determine what kind
of shield legislation you could as a group support. A great deal of work
was expended on the problems that the chairman has highlighted and
it may be a good idea to resurrect it.
However, I think the impetus, as I told Bill Small of CBS, is prob-
ably going to have to come from the media itself because I don't think
we want to take up shield legislation again unless we feel we are ac-
complishing something that would benefit you. It seemed that many of
the media thought the shield legislation at that time would maybe
not be helpful.
Mr. BAILEY. That is right, Mr. Railsback. You shouldn't under-
estimate the educational functions of the Congress, and I don't think
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107
the effort is wasted. I guess you could say in a way it never is wasted,
but in this case it appears to me that members of the committee may
have been somewhat more impressed about the trend that court cases
were likely to follow than some of us were in the news business, but
it did reflect, as you know, I am sure, a sincerely troubled feeling that
many of us had about this whole question of legislating around the
edges of the first amendment.
What has happened is that it has become, I think, increasingly
clear that the courts are willing to fool around with the edges of the
first amendment and indeed venture to the core of it, and some of us
take consolation from the wording of the first amendment, which, as
it deals with the press, prohibits the abridging of the freedom of the
press, a somewhat narrower prohibition than is applied. to other forms
of speech.
But I think your suggestion is a good one. I do think it is incumbent
upon the press at this point to see whether it can reach some kind of
consensus before it asks you to wade through that matter again.
Mr. RAILSBACK. The reason I mention that is, I remember when
Bill Small was here he made a remark which seemed to imply that we
had let the thing die. The reason, we did let it die-was because we
felt that there was, as our chairman has said, such fragmentation
among the media as to whether Justice Douglas' minority dissenting
opinion would eventually be the law of the land. I can understand why
some of you are having second thoughts in the light of what has
happened.
Mr. BAILEY. I think you let it die, but I think you held the mirror
to the mouth for a while and it didn't fog up.
Mr. RAILSBACK. That is about right.
Mr. KASTENMEIER. I must say in all candor it also appeared at the
time that the Senate-I think Senator Ervin was chairman of the
subcommittee-was not disposed to go forward with it and that it
would have been largely unavailing in any event given that time. I
would like to say that, while I think parenthetical discussion of it is
appropriate during this set of hearings, I think it is impractical to
think that there is any chance of tying the shield issue to the search
and seizure question. Neverthless is is as a companion question which
still confronts us.
It certainly confronts the news community, and, indeed, if the
Congress is successful in writing an acceptable bill on search and
seizure, then that may indeed inspire others to move forward on other
fronts of newsman's privilege.
At this point I would like to call on Mr. Landau.
Mr. LANDAU. Thank you, Congressman.
We would certainly like to thank you for the time and effort you
have taken and, of course, we do all remember the time and effort you
and Mr. Railsback and Congressman Cohen took in 1974 and 1975
and the frustrations that developed on everybody's part in trying to
work that out.
I think maybe Mr. Bailey made a point that it was a good idea but
maybe it was just a little too early at that time.
I am here on behalf of The Reporters Committee, which is a legal
defense and research fund primarily devoted to defending the first
amendment rights of the press, and I would like permission to intro-
duce Ms. Joy Koletsky, who is an attorney in our office, and who
helped prepare this testimony.
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108
Mr. KASTENMEIER. We are very pleased to have that introduction
and on behalf of the committee I am pleased to accept your statement
with its appendixes so that it will be printed in its entirety in the
record.
Mr. LANDAU. Yes. I am not planning to read the whole thing.
Mr. LANDAU. We have been long involved in the Stanford case.
As a matter of fact, after Judge Peckham's original decision voiding
the search, we and some other news organizations in California filed a
parallel case in the superior court in Los Angeles County against the
sheriff there. That case, interestingly enough, is still pending, but
may be mooted because of the new law which California has passed-
and I think Mr. Bailey made reference to it-setting its own standards.
It is, by the way, a press-only bill in California.
We agree with just about everything that is said here and I guess
especially with Mr. Bailey's rather eloquent statement that this
decision really strikes at the whole concept of a society which is
supposed to be free from Government intrusion except in the most
exigent circumstances. We have submitted a long statement going
all the way back to Entick v. Carrington, and up through Warden v.
Hayden, so I will only make a few brief points.
I think it is important that Congress take the initiative in this
area and pass legislation protecting every citizen not suspected of a
crime from surprise search warrant raids by the police because our
committee feels, as I think do most of the other press organizations,
that the fourth amendment was designed to guarantee the privacy of
all homes and offices from instrusive police raids and not just the
homes and offices of journalists.
I think that most people agree that the Supreme Court decision
is really a travesty to the concept of privacy and that it is a particular
outrage to the editorial privacy rights of the press to protect its
confidential and other unpublished information from inspection and
seizure by the Government.
I think, as the other speakers have made clear, the decision really
does give local and Federal law enforcement agents blanket authoriza-
tion to raid any home or office, even the tourists, as Mr. Sawyer
pointed out, rifling through their files and private correspondence.
It, of course, poses a particularly damaging problem to the press
because it, in effect, converts a good newspaper which goes out and
investigates these things, into an investigative arm of Government.
We support, and we hope you will strongly consider, expanding the
bill to cover all citizens. I think that if you go into section 5 and in
effect say to yourself, as the Congress said to itself in the Voting
Rights Act, and in the 1965 Civil Rights Act, that there are certain
issues which arise in society, such as racial discrimination or dis-
crimination against women which Congress has been given the power
under section 5 to correct, it would be as if the State's attorney
general in the south in the early sixties came to Congress and said,
"Well, don't fool around with us. We will work things out on an
individual basis."
I don't think that discouraged Congress from passing the Civil
Rights Act, and I certainly think that this issue, the privacy of
people's homes, is in many ways as important an issue as that was,
although, of course, the practice is not as widespread as racial dis-
crimination was.
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I have already answered in response to Congressman Sawyer's
question the Federal preemption question. I do think that Senator
Mathias' suggestion, which I have not heard before, is a very intriguing
suggestion, although you know that the Appropriations Committees
of both Houses are somewhat hesitant to tie substantive restrictions
to the Federal appropriation powers. However, it has been done in the
past, not, I don't think, in the first amendment area, but in the com-
mercial area.
We think in general that the administration bill is an honestly con-
ceived bill, which attempts to protect the press in a rather expansive
reading of that definition and that, as far as it goes, it would probably
achieve most of its goals. But we believe it doesn't go far enough and
that, in addition to the jurisdictional coverage, I would like to point
out a few things for your consideration.
One is that the administration bill, because it is tailored for the
press, does make a distinction between work product and nonwork
product material. Our committee has instructed me to suggest to you
that we would really support eliminating that distinction. The reason
is that most lawyers, or journalists, or doctors, or businessmen, do
not divide their files up between work product and nonwork product
material.
They will get nonwork product material, let's say a letter, from a
third party and they will write their own thoughts on the top. So that
permitting a search for nonwork product material is going to inevitably
allow the police to rummage through work product material.
We find as a matter of practical recordkeeping-the way most
people keep their files-that it doesn't really seem to be a very practical
distinction, although in theory it sounds like a reasonable approach.
On the national security exemption, we agree with the other speakers
that the whole bevy of statutes which the administration bill ex-
empts-I think there are something like eight or nine of them-in
addition to the vague difinition of restricted data in the Atomic Energy
Commission Act, is simply too vague a loophole; probably what ought
to be done is to just adopt the standard suggested in the New York
Times v. United States case of a direct, immediate, and irreparable
injury to the national security of the United States.
We also agree with the other speakers that the reason-to-believe
exemption is very vague. We all know what probable cause is. We
all know it has to be backed up by an affidavit. We all know that the
source of information to the policeman who signs the affidavit has to
be a reliable source and it has to be tested, and I think that it would
open up really quite a loophole to get into the vague standard of
whether they have reason to believe or whether they don't have
reason to believe.
We feel the same way about the interest-of-justice exemption. If a
journalist or another citizen loses litigation involving a subpena, he
has at that point a choice. He can turn the information over or he can
go to jail. Under the administration proposal, for example, after Mr.
Farber refused to comply with the subpena against him and lost the
appeal in the Supreme Court, Mr. Farber's home and the entire New
York Times could have been searched.
We think that the law ought to be just what it is. Let the courts
have their punitive power to punish those people who will not comply
with the subpena, but don't use the litigation laws as an excuse to
engage in a search.
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110
And, as to what causes a delay in an investigation or trial, that seems
to me once again to be a terribly vague standard, the length of the
chancellor's foot in any particular case.
We support the remedies in the administration bill and agree with
the other speakers that there ought to be open the avenue of filing in
Federal court which, because of the word "appeal" that has been used
in the administration bill would appear to be foreclosed.
I make one other suggestion. Congress says that it shall be unlawful
to do this, but we do not have any criminal penalties in this bill. It
might symbolize to local and State law enforcement how strongly you
feel about this if you were to include a criminal penalty for its violation
in addition to the civil damages which the Justice Department bill
suggests.
That is basically a summary of that rather lengthy statement we
gave you and thank you for inviting us.
Mr. KASTENMEIER. That was certainly a brief summary, as you say,
of a rather long statement, but I appreciate the work that has gone
into the other statement and I commend perusal of it. Certainly the
additions, the analyses made, are very useful and I commend all four
witnesses.
I have a number of questions.
I am going to, however, in fairness, reverse the order here. I will
postpone my questions.
I would like to recognize first the gentleman from California,
Mr. Matsui.
Mr. MATSUI. I have no questions, Mr. Chairman.
Mr. KASTENMEIER. The gentleman from Michigan, Mr. Sawyer?
Mr. SAWYER. I just want to make another observation that a
search warrant is a poor method to use to obtain a document.
It may be that in certain national security cases you might have a
highly trained group of FBI agents that are thoroughly conversant
with the problem and could identify or recognize what a document's
relevancy to something might be. However, the average deputy sheriff
or detective that is executing these search warrants is not oriented to
white collar type matters and probably would have a hard time identi-
fying what document might fit into some intricate picture. By the
same token, when you have documents in places where there are
several of them, you almost need the person who maintains the docu-
ments to be able to get what you want, with reasonable dispatch.
So it doesn't seem to me that putting these limitations, if they be
that, on search warrants is really any hindrance to legitimate law
enforcement.
I would just make a guess that over 90 percent of all search warrants
that are issued are issued for hard-drug-related crimes. I was a pros-
ecutor for a while in an urban environment and I don't remember our
writing search warrants for anything other than heroin.
I appreciate maybe in a murder case searching the suspect's home
to find some bloody clothing or something. It seems to me those are
the legitimate areas of search warrants, and there you have people
who know what they are looking for and know it when they see it.
However, to turn even a fairly large city's detective force, which we
had, loose on a business office, to try and find some papers would be
a useless exercise unless law enforcement officials took hours and hours
and hours, and attempted to read every document.
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It seems to me in this situation that it is inherently a misuse of the
purpose of the search warrant from a pure working practicality.
That is all I have, Mr. Chairman.
Mr. LANDAU. You bring up one point we tried to address ourselves
to in the testimony and that is that the privacy law for search and
seizure has normally been thought of as protecting somebody's house
where everything in the house is sort of theirs so that whatever privacy
violation occurs would affect just the homeowner.
But, when raiding a newspaper office or a lawyer's office, you open a
filing cabinet and you are destroying hundreds of privacy interests in
one wall of files, so that it is not just the lawyer's privacy interest
which is being destroyed as is the case with the single homeowner.
Every desk that is opened that is of a different reporter or a different
lawyer, and every set of files is a different set of informants and dif-
ferent confidential information. Therefore, a search of the offices of
reporters or other professional people is in many ways much more
intrusive because you may be violating the privacy of dozens of people
when you raid an office rather than that of just the individual home-
owner when you are confined to the single family house or apartment
or roominghouse.
Mr. SAWYER. When you are engaged in civil discovery, you can get
a court order or discovery order to obtain hundreds of files literally
and then have trained lawyers who understand the case conduct the
examination.
It is almost a self-defeating job just by the volume of materials
and by the skill of the people you have who are attempting to recog-
nize the importance of what they are seeing. It just seems to me that
the search warrant is not a legitimate way to obtain a document in a
normal case.
Mr. BAILEY. I might make one point that hasn't been brought up,
again kind of a footnote, but I think it is relevant here. This does
apply to newspapers, but I think it would also apply to other busi-
nesses and other institutions that use computerized data.
We now produce our newspaper and there is all kinds of fancy
jargon that really isn't English and I will try not to use it.
We now write our stories on computer terminals. Often our people
take notes directly into their computer file while listening to the
telephone, for example, just as you used to write it down by hand,
or type on a typewriter.
You now enter it into the computer. Any significant determinated
rummaging search would include, I am sure, an attempt to pull data
out of documents out of the computer system. If there were an in-
trusion into that system, it would automatically prevent the publica-
tion of the newspaper. Our own people can make that system crash
without half trying all too often, and the prospect of a rummaging
search through that kind of a piece of equipment would quite simply
and totally stop the publication because we are now linked in this
computer system for everything from the initial entry of news infor-
mation, classified advertising, a good deal of display, advertising, all
of our typesetting, and within a ftw months in our case platemaking
as well.
So that all you have to do is bang up one part of it and the news-
paper is out of business. That is a new dimension of this situation that
really didn't even exist a year ago.
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Mr. LANDAU. One thing that occurred to me, Congressman Sawyer.
Congressman Kastenmeier mentioned Senator Ervin. Senator Ervin
initially, when the shield law legislation came up, had the same res-
ervations that some members of this subcommittee might have about
the preemption question involving the States, and several weeks after
the hearings he issued a statement which I think we will be able to
send you, saying that he had changed his mind after considering the
question and that he thought that the commerce power would permit
Congress to reach the States, and, of course, he was certainly a strong
defender of the sovereignty of the States vis-a-vis the powers exercised
by the Congress, and if you wish, we can try to find that for you.
Mr. KASTENMEIER. The gentleman from North Carolina.
Mr. GUDGER. Thank you, Mr. Chairman. I want to commend and
thank each of these witnesses for a most stimulating testimony. I am
impressed, particularly by Mr. Landau's brevity. His written testi-
mony is very provocative and very penetrating, particularly I think
with respect to his review of the history of this constitutional privilege
against unreasonable search and seizure, and his reciting for the record
in his testimony Mr. Justice Fortas' comment in Warden v. Hayden
when he seemed to perceive in that decision an erosion of that right
and said, "The Court today needlessly destroys root and branch, a
basic part of liberty's heritage."
In other words, I think that you, by that quotation, Mr. Landau,
interpreted Warden v. Hayden as something unexpected in your knowl-
edge of our jurisprudence and our constitutional interpretations up to
that time.
Now, my question though to you is this : You have intimated by
your earlier statements that you felt that the Congress has power
under section 5 of the 14th amendment to interpret and broaden the
interpretation of the privilege against search and seizure so as to pro-
tect all innocent third parties from a documentary sifting.
That was the impact of our earlier statement. Is that correct?
Mr. LANDAU. Yes, sir.
Mr. GUDGER. Now, if the Congress has that power and if the Con-
gress disagrees with Warden v. Hayden, and Zurcher v. Stanford Daily,
and we do not act to protect all innocent third parties from such search
and seizure, are we not approving the act and interpretation of the
Supreme Court in all other aspects except as drawn by this bill laid
before us if we approve it in its present form?
Mr. LANDAU. You are asking a question, of course, that the Court
tangles with frequently, When a statute comes up and there is a debate
on a point which is not passed, some Justices will say Congress con-
sidered this and rejected it. Other Justices will say Congress took no
position on it. I don't think there is any pattern in the cases.
Mr. GUDGER. Let me phrase it this way. If Congress has the power
to write the immunity around everybody and does not do so and writes
it only about first amendment activities, are we not under the old
philosophical principle of inclusio unius est exclusio alterius is per-
fectly all right everywhere except in first amendment activities, and
no other protection is justified.
We do not suggest the State act; we do not suggest anyone else act
to protect other than as we prescribe for the press.
Mr. LANDAU. I think it is a subjective decision that the Court will
make. The justices will, for example, read these hearings and say
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Congressman Gudger suggested that because we did not act, in fact
Congress was approving all the rest of this. That is how legislative
analysis is done in these decisions. Perhaps the way to cure that
problem is simply to make a flat statement in the committee report
of whatever bill comes out that by not dealing with everyone else, if,
in fact that is what happens, by not dealing with persons who are not
members of the press, Congress does not intend in any way to say
that it approves of the rest of the decision, but that it just decided to
deal with this issue at this time on this basis.
Now, I think if there was a formal committee report adopted by the
conference committee with a policy statement of that nature, then
the Court would not be able to go behind that conference report and
say, "But they considered it and therefore they are approving it."
Mr. GUDGER. Thank you very much for that analysis.
Now, I want to address a question that is somewhat parallel to
that to Mr. Lewis. Mr. Lewis, in your testimony you state: "We
support legislative relief with the hope this does not establish a
precedent for Federal regulation of the press."
Do I interpret that to mean that if this Congress is to enact
H.R. 3486 and draw a pattern of protection from search and seizure
around first amendment activities, that you perceive that hereafter
the Congress might write fruther exclusions or exceptions in this area?
Mr. Lewis. That is the fear of many of our members and that is the
underlying fear in the new community for opposition to shield legis-
lation. Some journalists felt that that would be a first step toward
total or further or more complete Federal regulation of the press, and
that is indeed a fear.
Mr. GuDGER. Isn't then your conclusion that maybe this problem
should not be limited to the press, but that we should address the
problem as broadly as Congress is able to address it, protecting all
documents in the hand of innocent third parties.
Mr. Lewis. Absolutely.
Mr. GUDGER. Let me ask you one final question and this will
conclude my questioning. In this society of ours where presumably
all of us are to some degree educated and capable of creative writing
and are likely in that connection to undertake, as Mr. Bailey testified
he did, from time to time, research with the possible thought of
writing a book or with the possible thought of developing some theories
for the future benefit of mankind, which may or may not be written.
Why should not each of us be entitled to the same protection of those
documents which we gather, which would contribute to that work
product which we may or may not ultimately undertake, and the
work product itself, even if it is in the form of notes and analyses?
Why should there be a distinction between Mr. Bailey, the re-
searcher, and Mr. Bailey, the publisher? Mr. Bailey?
Mr. BAILEY. My view, Mr. Gudger, is that there should not be
such a distinction. I personally feel very strongly, and the shorthand
I use is that this is a fourth amendment matter and that what ought
to be addressed here is the holding of the court that it is not a fourth
amendment matter.
To me the whole business of the search warrant of a party not
suspected of a crime is repugnant, and I really have searched my
conscience on this and I really don't believe it is because I am a
journalist that I feel that way.
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I am an amateur at history, not a lawyer, as probably my testimony
has made clear, but I am an amateur at history and I do know some-
thing of the sources of our system of self-governance in this country
and the reasons therefore and I feel very deeply that what brought
all of our forbears to this country was the deep desire to be free of the
heavy hand of arbitrary government power. That desire takes many
forms and, as you know, in your State, I think just about everybody
that settled your State, was trying to get away from that kind of
thing, whether it was from London or from Tidewater.
It is what drove people through the passes and onto the Great
Plains and across to the west coast, that search to be left alone, and
I don't see this as a press matter. I see it as a matter of the individual's
right to be left alone except for due cause.
Mr. GUDGER. Mr. Chairman, I want to make an expression of
appreciation. I want to thank these gentlemen again, but I would
like to make this observation. Mr. Bailey has said he is not a lawyer.
That is the loss of the legal profession. I have an idea that he would
have made a great lawyer had he had that opportunity. Thank you
very much.
Mr. KASTENMEIER. I thank my colleague for his observation.
Next I would like to recognize the gentleman from Illinois, Mr.
Railsback.
Mr. RAILSBACK. Thank you, Mr. Chairman.
I might just say that Mr. Bailey is probably doing much better
right where he is rather than being a lawyer somewhere else.
Mr. BAILEY. I don't know about that, Mr. Railsback,
Mr. RAILSBACK. Anyway, let me address the panel and ask is it
the view of all of you that the administration's bill may be deficient
in these respects: One, using a standard other than probable cause;
that is, "reason to believe" ; second, that the national security language
may unintentionally be a loophole; and, third, that it should be
expanded to include other third parties?
Is that a fair statement that all four of you would agree with?
Mr. FRIEDHEIM. Yes, sir.
Mr. BAILEY. Yes, sir.
Mr. RAILSBACK. Let me just mention then, Mr. Landau, that I
I have introduced the Mathias bill, which is H. R. 4181, I think I
would like to have you take a look at in addition to the other bills
that you mentioned and please understand there is absolutely no
pride of authorship. All of us on this committee want to do what we
believe is right in correcting what may be a very serious problem.
I happen to think after looking into it a little bit more than I had
initially, that the problems that may be developing for lawyers or for
doctors may be every bit as serious, if not more so, than the ones
that obviously confront the press.
What I would like to get into now is what really concerns me.
Mr. LANDAU. Congressman Railsback, this wasn't brought out in
the case, but in the raid against the Stanford Daily in California there
was a simultaneous raid made on the office of the Stanford Psychiatric
Services and their records were seized too.
Now, that was not litigated in the case, but is in the record, so we
already have an example of this type.
Mr. RAILSBACK. What really bothers me about these rummagings
and riflings of files is not only that the law enforcement people have
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access to a particular individual's file, but apparently in some searches
they have actually rifled other patients' files, which should be clearly
offensive to all of us.
I am troubled. I have to do some more homework about the Zurcher
case but apparently the case would not recognize either first amend-
ment or fourth amendment protection. So then, in legislating, if we
want to preempt, the States we can possibly use the rationale sug-
gested by Senator Mathias, which is based on section 5, the im-
plementing section of the powers section of the 14th amendment.
Section 5 presumably would permit us to afford protection going back
to either the first amendment or the fourth amendment, and given
the finding in Zurcher, it appears to me that that may be difficult to do.
On the other hand, I am bothered by Senator Mathias' other state-
ment that perhaps we ought to use the dangled carrot approach.
In other words, we can preempt by saying if you want out money,
then you have to agree to do this. That bothers me.
But, what is your feeling? Maybe you ought to elaborate a little
bit more, Mr. Landau, on the holding of the Zurcher case, and what
you think that it provides in trying to use what I think would be the
desirable device, which would be section 5, using the rationale of the
voting rights cases. What are the problems there as far as preemption
of the State is concerned?
Mr. LANDAU. I can only point out to you without any determina-
tion by Congress the Supreme Court upheld the constitutionality of
State literacy tests because Congress hadn't spoken in the area. When
Congress then decided to speak, the Court deferred to the congres-
sional determination as to what was necessary to protect the right to
vote. I think we are in the same situation here. Congress has not
said what an unreasonable search is and, based on that silence, the
court, by a divided vote, has said it will interpret what is a reasonable
or unreasonable search.
If Congress once again decides to step into the area and exercise
its section 5 prerogative, I see no reason why the court wouldn't give
Congress the same deference in the fourth amendment privacy area
as it has given the Congress in the voting area.
Mr. RAILSBACK. Then just one final comment. I remember that we
did try to design findings in the 18-year-old-vote legislation. The court
in Oregon v. Mitchell was not willing to recognize the clear congres-
sional findings, but I take it you would distinguish that case because,
as I recall, the court held that there was express authority given to .the
States. Is that right?
Mr. LANDAU. The section says the State shall set the requirements.
Mr. RAILSBACK. Is it your belief that in finding support for legisla-
tion that would be preemptive in nature that we would be best to
rely on section 5 of the 14th amendment, or the commerce clause,
or the dangled carrot or perhaps all three possibilities?
Mr. LANDAU. I guess from our point of view I would suggest putting
all three in and hoping that if they shoot down two, at least you will
have a third one.
Mr. BAILEY. May I comment on that? I would agree with Jack that
the more reasons you could find for doing what you do, the better,
but I don't think you necessarily should be bashful about the dangling
carrot.
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I think the Congress has used it is a number of ways, usually in a
positive rather than a negative way. I can remember covering, as a
reporter, way back about 1957, the argument over the inclusion in the
highway legislation of the three-quarters of 1 percent bonus for getting
billboards off the highways.
It is an old and traditional, if somewhat soiled, device.
Mr. RAILSBACK. It works too.
Mr. BAILEY. It works and it has often been used.
Mr. RAILSBACK. A little bit heavy-handed.
Mr. LANDAU. Of course, you used it in title VI in terms of Federal
grants to State institutions in terms of discrimination.
Mr. BAILEY. But the LEAA law and the administration of it, I
think, in a number of cases, has hedged about with federally set
standards, for instance, in the privacy area.
Mr. RAILSBACK. Yes.
Mr. BAILEY. On which the granting of money to the States is
conditioned. The meeting of those standards is often set as a condition
for it. So even in this law enforcement area it is a device that has been
used.
Mr. LANDAU. I just made one note to myself. You asked Mr. Bailey
if there was much evidence of newspapers being worried about this.
We had a call just yesterday from a television station which had
some dealings with a law enforcement agency and there were some,
implications that unless they turned over what the law enforcement
agency wanted, they were going to search them, and. they called us to
say what can we do to protect ourselves, and we have had several
calls like that.
We had a judge in Ohio several months ago just flat out tell the
the editor that if they didn't produce what was wanted he was thinking
about issuing a search warrant which, of course, threw the newspaper
into a
Mr. RAILSBACK. I believe it is significant that there have been some-
thing like 500 subpenas issued ever since the court upheld the other
requirement that confidential sources be disclosed. That is kind of
revealing.
I have nothing else, Mr. Chairman.
Mr. MATSUI. Mr. Chairman, may I just ask a question?
Mr. KASTENMEIER. Yes. The gentleman from California..
Mr. MATSUI. Thank you. This is just a follow up to Mr. Railsback's
statement, Mr. Landau.
Have you read any treaties or talked to any legal scholars on con-
stitutional law that would say that this case does limit Congress from
working under section 5 of the 14th amendment?
Mr. LANDAU. There is a great debate in the legal literature and has
been ever since Katzenbach versus Morgan. There would be some
people who would agree with Justice Frankfurter's views on the matter
that section 5 was not intended to let Congress go to the substantive
areas of the Bill of Rights, but there is a debate in the legal literature,
but the Supreme Court action still stands, and it stands on a brief
submitted by the United States, which is why I said I found. it very
curious that they come back 14 years later and argue that their own
brief is not justification for what we suggest they can do.
Mr. MATSUI. Thank you.
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117
Mr. KASTENMEIER. I might add that I share the gentleman from
Illinois' reservation about relying on financial inducements to effectu-
ate the purpose of this bill. I think it is probably a good, general,
taotical position to rely on as many supports as you can, but I think
we are really talking about LEAA, and that is a troubled administra-
tion. It is a bill which we are recently processing through this com-
mittee. It has a limited life, and one doesn't really know from one
term to the next what will be included, how many dollars there will be.
For example, I think this year, like in past years, we excluded money
for construction. In past years we included it, so to rely on such a de-
vice to have some sort of uniform application of the principles, we
hope we can enact here, that is a very, very tenuous leg indeed to rely
on.
I personally do not commend it because of the great uncertainty
associated with LEAA.
On another point, in reading and remembering what Mr. Bailey has
said, but nonetheless I will ask the point again, and that is, as far as
bills covering the Federal cases only, Mr. Bailey suggested it could
have an exemplary or model utility for States. There are situations
which might have been covered and were not, and it might have some
value in that context as well. But apart from that, we are really not
talking about the problem as a Federal problem, are we? Essentially
it is a State and local problem, the search and seizure problem. It is
not essentially a Federal problem.
Therefore, if the act were by any means limited to Federal applica-
tion only, its impact would be very, very greatly reduced in terms of
where the problem is.
Mr. BAILEY. In the sense that criminal law and criminal justice
proceedings generally, in terms of the numbers, the percentages, are
overwhelmingly State and local, yes.
Mr. LANDAU. You raise another problem, Congressman, and that is
we have a case in California where we know that the California
authorities wanted to subpena a California reporter but were pro-
hibited by California's absolute shield law. They then made an arrange-
ment with the Federal Government to have the reporter called before
a Federal grand jury, because the Federal case law is not anywhere
near as tough as the California shield law. If you set up a Federal-
only bill, you would then, I think, be encouraging the FBI to avoid the
Federal stricture by making similar arrangements with States to serve
search warrants in incidents where the FBI would be prohibited, and
of course knowing the FBI's great cooperation between the State and
Federal law enforcement, you might be doing two things: One, as
Congressman Gudger has suggested, implying that this is a good thing
to do; and, secondly, almost encouraging Federal law enforcement
officers to avoid the law by dealing with the State officials.
Mr. KASTENMEIER. Mr. Landau, you list-and I think maybe we
had the list before-the 15 or 16 cases. Of the 15, 13 are derived from
California?
Mr. LANDAU. Right.
Mr. KASTENMEIER. You have also indicated in the meantime
California has enacted a search and seizure law which would-would
it prohibit these activities?
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Mr. LANDAU. Yes; what they did was very curious. What they did
was simply say you may not search for anything covered by their
absolute shield law, so they absolutely prohibited all searches under,
I think, all conditions. Destruction is not an exemption. National
security is not an exemption. Death is not an exemption. It is as abso-
lute as California's shield law is.
Well, of course, the California courts have sort of trampled over
the California shield law, and now there is an effort in California to
have a constitutional amendment to force the State courts to obey
the shield law, so that the fight has really escalated due to what the
California courts have done.
Mr. KASTENMEIER. Therefore, if we enacted H.R. 3486 more or less
in its present form, with or without the amendments that you have
suggested, as far as the State of California is concerned, wherein so
many of the pieces of litigation and incidents have arisen in the last
10 years, it would be important that H.R. 3486 not preempt State law,
because in California they have an excellent and a stronger law.
Mr. LANDAU. You have the same situation under title 7. Many
States have passed antidiscrimination laws which are considerably
more stringent than the laws which the Congress has passed, and of
course the State authorities are obligated to adhere to the higher
standard of their State law. In those States where there is no State
law, they have to follow Federal law; and if a State were to pass a law
with less protections than Congress has provided, they would still
have to follow the Federal law.
Mr. KASTENMEIER. I want to personally thank you.
Are there any other questions?
If not, on behalf of all of us here this morning, I wish to commend
you and congratulate you on your testimony. You have been of very
great assistance to the committee. We have entered sort of the defini-
tive phase of our hearings. On this important question, it is sort of a
continuing exercise we are in, and I think some members of the com-
mittee may still be disposed to write a bill that does not include the
scope and the problems addressed today. I think some of us are not
quite as sanguine as members of the panel in terms of constitutional
problems.
There has been testimony which was supportive and that suggested
largely this was a policy question. We should measure policy, law en-
forcement versus other values, striking a balance, and then probably
we could constitutionally justify it. But assuming there will be some
resistance to accepting such a substantial change, I am sure there will
be a strenuous constitutional test were we in fact to extend it to State
and local, and give the widest possible scope to the bill as recommended
by you this morning.
In any event, we trust that you will be able to aid us not only this
morning but in the weeks to come as we deliberate on this question.
Thank you.
That concludes the hearing this morning.
Tomorrow morning at 10 o'clock, we have another hearing. I urge
members of the committee to attend as it is the last scheduled hearing
on this question. Until that time, the committee stands adjourned.
Mr. LANDAU. Thank you, Mr. Chairman.
[Whereupon, at 12:10 p.m., the subcommittee was adjourned, to
reconvene at 10 a.m., Friday, June 1, 1979.]
[The prepared statement of Mr. Landau follows:]
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`The Reporters Committee for Freedom of the Press
Legal Defense and Research Fund
Room 1112. 1750 Pennsylvania Ave. NW
Washington, DC 20006 ? Tel. [phone]
Steering Committee
WASHINGTON
DavId Beckwith
' Legal Times of
Washington
Diana Camper
'Newsweek
Lyle Denniston
' Washington Star
William J. Eaton THE
Los Angeles Times
Morton Kondracks
The New Republic
Jack C. Landau
Newhouse Newspapers
Robert C. Maynard
' Inst. for Journalism
Education
Jack Neilson
Los Angeles Times
David Rosenbaum
New York Times
Howard K. Smith
'ABC News
Lesley Stahl
CBS News
Bob Woodward
Washington Post
NEW YORK
Tom Brokaw
NBC News
Walter Cronkite
CBS News
Nat Harriett
'The New Yorker
John Miner
' New York Times
J. Anthony Lukas
' Freelance
Barbara Wall.
'ABC News
BOSTON
Jack White
Time
HOUSTON
Tony Castro
'The Texas Observer
JACKSON, MISS.
Wilson F. Minor
The Reporter
LOS ANGELES
William Far,
Los Angeles Times
MIAMI
Gene Miller
Miami Herald
MINNEAPOLIS
Austin C. Wehrwein
Minneapolis Star
OKLAHOMA CITY
Jack Taylor
' Daily Oklahoman
'Identification purposes only
STATEMENT OF
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
Delivered By
Jack C. Landau
Before
THE HOUSE COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES
AND THE ADMINISTRATION OF JUSTICE
May 31, 1979
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120
INDEX
Page
A. Twelve Pending Bills to Reverse Stanford Daily. 1
B. Two Major Issues: Persons Covered and
Geographical . . . . . . . . . . . . . . 2
C. Stanford Daily's Effect on Journalists and
Other Citizens . . . . . . . . . . . . . . . 2
D. Press Reaction to Stanford Daily . . . . . . . 5
and Fourth Amendments . . . . . . . . . . . . . 9
A. Entick v. Carrington to Warden v. Hayden . . . 9
B. The Dangers of the Stanford Daily Decision . . 13
1. Politically Appointed Magistrates . . . . 14
2. The Magistrate's Contempt Power . . . . . 14
3. Confidential Sources . . . . . . . . . . . 15
C. News Collection Crimes . . . . . . . . . . . 16
D. Newsroom Rummaging . . . . . . . . . . . . . . 16
E. General Legislative Options . . . . . . . . . 18
The Carter Administration Proposal . . . . . . . . 19
A. Limited Coverage as to Persons -- Reporters,
Researchers, etc . . . . . . . . . . . . . . 19
B. Broad Geographic Coverage: Federal and State
Warrants . . . . . . . . . . . . . . . . . 20
1. Federal Preemption: The Dangers of a
Federal-Only Bill . . . . . . . . . . . 20
2. Federal Preemption: Constitutional
Justification . . . . . . . . . . . . . 22
a. The Fourteenth Amendment . . . . . . . 22
b. The Commerce Clause and the Omnibus
Crime Control Act . . . . . . . . . 23
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Page
C. information Protected . . . . . . . . . . . . . 25
1. Searches for "Work-Product Materials" . . . . 25
2. Searches for Nonwork Product or "Documentary. 26
Materials"
D. National Security Exemption . . . . . . . . . . . 27
E. The "Reason to Believe" Exemption . . . . . . . . 28
F. The "Interests of Justice" Exemption . . . . . . 28
G. Remedies . . . . . . . . . . . . . . . . . . . . 30
Appendices
Footnotes . . . . . . . . . . . . . . . . . . . . . . A
15 Incidents of Search Warrants . . . . . . . . . . B
Summary of Legislation Restricting Search Warrants C
Statements of Leading Media Figures . . . . . . . . . D
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Mr. Chairman, Members of the Subcommittee:
My name is Jack C. Landau. I am a news reporter employed
by the Washington Bureau of the Newhouse Newspapers, and I appear
before you today on behalf of The Reporters Committee for
Freedom of the Press,* a Legal Defense and Research Fund which
concentrates on defending the First Amendment and freedom of
information interests of the news media. I am accompanied by
Ms. Joy Koletsky, a staff attorney with The Reporters Committee.
A. TWELVE PENDING BILLS TO REVERSE STANFORD DAILY
On behalf of our Committee, and of the working press we
defend in court and in other ways, we should like to thank
you for this opportunity to present our views on proposed
legislation to reverse the recent Supreme Court decision of
Zurcher v. Stanford Daily,l primarily, H.R. 3486, drafted by
the Administration and introduced by Representative Kastenmeier,
which is identical to S. 855, introduced in the Senate by
Senator Bayh. This testimony will also cover issues raised
in other search warrant bills introduced in both the House
and the Senate:
H.R. 1373, introduced by Representative Gudger;
H.R. 380, introduced by Representative Guyer;
H.R. 1437, introduced by Representative Quayle;
H.R. 283, introduced by Representative Drinan;
H.R. 1305, introduced by Representative Sawyer;
*The Reporters Committee would like to express its appreciation
to Brona Pinnolis of George Washington University Law Center
and Steven Helle of the University of Iowa College of Law who,
as interns at The Reporters Committee, helped in the preparation
of this testimony
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123
H.R. 322 & H.R. 323, introduced by Representative Fish
H.R. 368, introduced by Representative Green
H.R. 1293, introduced by Representative Crane
S. 115, introduced by Senator Mathias
B. TWO MAJOR ISSUES: PERSONS COVERED AND GEOGRAPHICAL
JURISDICTION
Although each of these bills varies somewhat, they basically
address themselves to two primary questions:
First: Some of the bills would restrict the search warrant
powers of both federal and state law enforcement officials (the
Administration bill, Mathias, Guyer, Quayle, Drinan, Fish H.R. 323,
Green, and Crane) and some would only restrict the search warrant
power of federal law enforcement officials (Gudger, Sawyer and
Fish H.R. 322.)
Second: Some bills would protect the privacy of all citizens
not suspected of a crime (Mathias, Gudger. Guyer, Quayle, Sawyer,
Fish H.R. 322, and Green). Some bills would protect only the
privacy interests of the press (Drinan, Fish H.R. 323 and Crane).
The Administration bill is somewhat different. It would protect
"materials possessed by a person in connection with the purpose to
disseminate to the public a newspaper, book, broadcast or other similar
form of public communication" and is intended to cover scholars,
researchers and others not normally thought of as being members of
the conventional news media.
C. STANFORD DAILY'S EFFECT ON JOURNALISTS AND OTHER CITIZENS
This legislation was prompted by the Supreme Court's 5-3
ruling of may 31, 1978 that the First and Fourth Amendments to
the U.S. Constitution do not prohibit local and Federal law
enforcement officials from conducting no-notice surprise search
warrant raids on members of the public and the press -- not suspected
of involvement in any crime; not in possession of the fruits or
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instrumentalities of any crime; and not suspected of intending to
destroy information, should it be sought by subpoena.
All the police must show to a local magistrate, under the
decision, is that there-is probable cause to believe that any
member of the public or the press has any type of documentary
"mere" evidence remotely or indirectly connected to the commission
of any crime.
Armed with the probable cause showing, the police are
authorized to force their way into homes'and offices and to inspect
all of the contents in their effort to seek the information
'specified in the warrant.
There is no question that this decision is a travesty to
the privacy rights secured to every citizen under the Fourth -
Amendment -- which prohibits "unreasonable" searches -- and that
it is a constitutional outrage to the editorial privacy rights of
the press to protect confidential and other unpublished information
from inspection and seizure.. by the government.
This decision gives local and Federal law enforcement
officials blanket authorization to raid virtually any home or
office in this country -- rummaging through files, private
correspondence, and confidential information -- and the public
and the press subjected to this rummaging power are helpless to
protect documents from the prying eyes of government.
It is particularly damaging to the independence of the
news media because it converts every reporter and photographer
into an investigative arm of law enforcement.
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It is for these reasons, as this testimony will more fully
develop later, that The Reporters Committee strongly favors
Congressional legislation protecting every member of the public,
including the press, from this type of destructive police power;
and furthermore, that we urge the Congress to make this protection
uniform for all citizens by restricting the surprise raiding
power of both Federal and state law enforcement officials.
Our records show that since 1970, there have been fifteen
search warrants issued for information in the possession of
recognized news organizations -- thirteen obtained by state officials
and two by the Federal Bureau of Investigation.
As usual in government harrassment of the press, the first
victims were smaller news-organizations: a student newspaper,
an FM station and an alternative weekly. But within the last 18
months, search warrants were obtained against the four major
television-stations in the San Francisco area and the Associated
Press bureau in,Helena, Montana.
While there have been no raids we know of in the last 12
months, the fear of such raids has become an integral part of
news gathering for many publications. In some cases, journalists
are destroying or hiding their notes. In other cases, newspapers
have developed standardized procedures in preparation for such
raids such as making sure that a photographer accompanies the
police, taking pictures of the rummaging and that a tape recording
is made of all conversations between news personnel and the police.
This fear has prompted a number of state press associations to
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126
obtain legislation in the states. For example, bills have been
passed in California, Connecticut, Pennsylvania and Nebraska,
while in other states bills have been introduced but not yet passed.
The reasons for the press's fears are based on bitter historical
experience. For example, there were no more than a dozen subpoenas for
confidential news sources served against the press from 1960-1969.
Then, the courts started upholding these subpoenas. The result
was, that from 1969-1978, we know of at least 500 subpoenas for
confidential and unpublished information.
Even if we do not see dozens of raids against news organizations
in the near future, we would still urge Congress to act because no
journalist or news organization will feel secure living under the
threat of a possible raid anytime a newspaper or broadcast station
is working on any story involving crime. Furthermore, as other
editors and reporters have pointed out, just one raid at the right
time could do incalculable damage to the public's right to know the
news. If the New York Times had been raided, the Pentagon Papers
might never have been published; and if the Washington Post had been
raided and its Watergate files seized early in its ivestigation, the
entire Watergate story and the resignation of President Nixon might
never have occured.
D. PRESS REACTION TO STANFORD DAILY
In the course of your deliberation on whether to move promptly,
you have at your disposal the opinion of virtually every major
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professional press association, many prominent individual
journalists, and dozens of newspaper editorials.
These news media persons and organizations are unanimous in
their condemnation of the police raid decision, not only based
on their objective evaluation of the danger to confidential sources,
but also based on their subjective evaluation of the danger to our
whole Constitutional system of values.
Perhaps Howard K. Smith, a member of this Committee, put it
best when he said: "When I was a new young reporter at the United
Press in Nazi Berlin... there was a knock at the door... and 15
Gestapo men barged past me, began opening every desk and studying
every piece of paper they could find.. .Six hours later they left...
I remember thanking God this couldn't happen in America. Well,
now it can. It is the worst, most dangerous ruling the Court has
made in memory...."
If you were to tell someone that you had just visited a
country where police have the authority to conduct surprise searches
of innocent news organizations and innocent homeowners, and rifle
through their files and correspondence, they would probably say
_ that you had just come back from the Soviet Union or China. That.
is why I suggest that this decision symbolizes a police power
alien to our whole concept of 'a free society. Modifications or
limitations on this ruling are not enough. It must be excised from
our law, root and branch. And, as the following list of amici
curiae in the petition for rehearing in the Stanford Daily case
demonstrates, we are not alone in our sentiments:
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rr nw (4mirt of 141P Numb statp.0
OCTOBER TERM, 1977
JAMES ZURCHER, et at.,
v. Petitioners,
THE STANFORD DAILY, et at.,
Respondents.
Louis P. BERGNA, at at.,
v. Petitioners,
THE STANFORD DAILY, at at.,
Respondents.
On Writs of Certiorari to the United States
Court of Appeals for the Ninth Circuit
MOTION FOR LEAVE TO FILE BRIEF AND
BRIEF IN SUPPORT OF PETITION FOR REHEARING
THE REPORTERS COMMITTEE THE STUDENT PRESS LAW
FOR FREEDO31 OF THE PRESS CENTER
THE AMERICAN NEWSPAPER THE SOCIETY OF PROFESSIONAL
PUBLISHERS ASSOCIATION JOURNALISTS (SIG3LA DELTA
THE NATIONAL NEWSPAPER CHI)
ASSOCIATION THE NEWSPAPER GUILD
THE NATIONAL ASSOCIATION (AFL.CIO) .
OF BROADCASTERS THE AMERICAN FEDERATION OF
THE AMERICAN SOCIETY OF TELEVISION AND RADIO
NEWSPAPER EDITORS ARTISTS (AFL-CIO)
THE ASSOCIATED PRESS THE CALIFORNIA NEWSPAPER
MANAGING EDITORS PUBLISHERS ASSOCIATION
THE RADIO?TELEVISION NEWS THE NEWSPAPER ASSOCIATION
DIRECTORS ASSOCIATION MANAGERS. INC.'
THE NATIONAL PRESS CLUB
Of Counsel: LLOYD N. CL*n,ER
JACK C. LAKD..U WILLIAM T. LAKE
THE REI'ORTER3 COMMITTEE WILMER, CUTLER & PICKERING
1666 K Street, \.1W.
FOR FREEDOM OF THE PRESS Washington, D.C. 40006
1750 Pennsylvania Avenue,
N.W. Attorneys for Amici C!ariae
Washington, D.C. .
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? The Newspaper Association Managers, Inc. represents the execu-
tive directors of the following press associations not previously ap-
paring as assist curiae in this casee:
Alabama Press Association
Allied Daily Newspapers
Arizona Newspapers Association, Inc.
Arkansan Press Association
Canadian Community Newspapers Association
Colorado Press Association
Florida Press Association
Georgia Press Association
Hoosier State Press Aseaciatlon, Inc.
Idaho Newspaper Association
Illinois Press Association, Inc.
Inland Daily Press Association
Iowa Press Association, Inc.
Kansas Press Association
Kentucky Press Association
Louisiana Press Association
Maryland-Delaware-D.C. Press Association, Inc.
Massachusetts Newspaper Publishers Association
Michigan Press Association
Minnesota Newspaper Association
Mississippi Press Association
Missouri Press Association, Inc.
Montana Press Association
Nebraska Press Association
Nevada State Press Association
New England Press Association
New Jersey Press Association
New Mexico Press Association, Inc.
New York Press Association
New York State Publishers Association
North Carolina Press Association, inc.
North Dakota Newspaper Association
Ohio Newspaper Association
Oklahoma Press Association
Ontario Weekly Newspapers Association
Oregon Newspaper Publishers Association, Inc.
Pennsylvania Newspaper Publishers' Association
Publishers Bureau of New Jersey, Inc.
South Carolina Press Association
South Dakota Press Association
Southern Newspaper Publishers Association
Suburban Newspapers of America
Tennessee Press Association
Texas Press Association
Utah Press Association
Virginia Press Association, Inc.
Washington Newspaper Publishers' Association
Wisconsin Newspaper Association
Wyoming Press Association
J. LAURENT SCHARPP
1200 18th Street, N.N.
Washington, D.C.
The Radio-Television News
Directors Association
CHRISTOPHER B. PACER
MICHAEL SIMPSON
1750 Pennsylvania Avenue, N.W.
Washington, D.C.
The Student Press Law Center
DAVID S. BASS
1101 17th Street, N.W.
Washington, D.C.
The Newspaper Guild
MORTIMER BECKER
STANFORD I. WOLFF
1350 Avenue of the Americas
New York, New York
The American Federation of
Television and Radio Artists
MICHAEL B. DORAIS
1127 11th Street
Sacramento, California
The California Newspaper
Publishers Association
ARTHUR B. HANSON
888 17th Street, N.W.
Washington, D.C.
The American Newspaper
Publishers Association
JAMES B. CREGAN
529 14th Street, N.W.
National Press Building
Washington, D.C.
The National Newspaper
Association
Eawct G. KRASNOW
1771 N Street, N.W.
Washington, D.C.
The National Association
of Broadcasters
RICHARD M. SCHMIDT, JS.
1920 L Street, N.W.
Washington, D.C.
The American Society of
Newspaper Editors; and
The Associated Press
Managing Editors
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LEGAL DISCUSSION: STANFORD DAILY AND THE FIRST AND FOURTH
AMENDMENTS
In the past when this Committee has testified,
we have limited our suggestions to pending legislation
affecting the interests of the press only. While we realize
that it might be politically simpler for us to ask the
Congress to limit the search warrant powers of police in
regard only to the raiding of news offices, The Reporters
Committee has decided that this privacy protection is import-
ant for all of the public, not just the press.
We have come to this conclusion based on the history
of the Fourth Amendment which was passed to guard against
the very type of raiding power upheld by the Supreme Court
in the Stanford Daily case.
A. ENTICK V. CARRINGTON TO WARDEN V. HAYDEN
The List of Infringements and Violations of Rights
drawn up by the Boston Town Meeting in late 1772 stated that
"our houses and even our bed chambers are exposed to be ran-
sacked, our boxes, chests and trunks broke open, ravaged
and plundered...." by officers of the Crown using general
warrants. .9/
warrant power, stated that "officers [may, unless subject to
restriction] go into your cellars and rooms, and search, ran-
sack, and measure, everything you eat, drink and wear. They
ought to be restrained within proper bounds."3
Judge Learned Hand, in reviewing the philosophy of
the Fourth Amendment, stated: "[I]t is only fair to,observe
that the real evil aimed at by the Fourth Amendment is the
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131
search itself, that invasion of a man's privacy which con-
sists in rummaging about among his effects to secure evidence
" 4/
And Judge Hand was only echoing the language of an
1886 Supreme Court decision, Boyd v. United States, in which
the Court unanimously condemned any contravention of the
Fourth Amendment principle of an "indefeasible right of personal
security, personal liberty, and private property, where that
right has never been forfeited by [the] conviction of some
public offense."--S/
In casting this Fourth Amendment principle as a
"sacred right", the Boyd Court relied heavily on the reason-
ing of Lord Camden in the landmark English case, Entick v.
Carrington and Three Other King's Messengers. In 1765,
Lord Camden voided a warrant for personal papers and enun-
ciated the rationale that was later to serve as the foundation
for our own Fourth Amendment. Lord Camden voiced the fear
shared by the esteemed Lord Coke that any right of the
government to search through personal papers and effects
to discover evidence confounded the innocent with the guilty,
and was perhaps "more pernicious to the innocent than useful to
6/
the public."
Despite the strong antipathy in England and the
United States to the rummaging power, there was one exception
to the rule. This exception permitted search warrants to
issue to seize the fruits and instrumentalities of a crime
or to seize contraband. That is the way matters stood for
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178 years until May 1967 when the Supreme Court in Warden
v. Hayden, reversed the teachings of Lord Camden, the
Constitutional Convention and virtually every Supreme Court
case until that time. It ruled that warrants could issue
for the seizure of mere evidence from innocent third par-
ties not themselves suspected of any involvement in the crime.
Because the items seized in Warden v. Hayden were
seized incident to a lawful arrest and because 95% of the
search warrants are for drugs or other instruments of crime,
it was not until Zurcher v. Stanford Daily that the Supreme
Court had the occasion to deal directly with the question
of a search warrant for evidence against a citizen, in this
case a newspaper, not suspected of a crime and not in pos-
session of any fruits of a crime. But certainly the three
dissenters in warden V. Hayden saw the danger. For as Mr.
Justice Fortas said on behalf of himself and Chief Justice
Warren: "The Court today needlessly destroys root and branch,
a basic part of liberty's heritage." 7/
The destruction of this heritage is particularly damaging
to the press, a fact that was as clear to Lord Camden and to the
colonial patriots as it is to us today. It should be remembered
that the original limitations placed on search warrants in England
in Entick v. Carrington stem from efforts of the Crown to bring
libel charges against government critics. whose papers were
seized in raids authorized for the discovery of evidence. If
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during such raids the agents found any books to be libelous
against the church or state, [they were] to seize them and
carry them before the proper magistrate." _Y-
Lord Camden strongly criticized the trespass that
resulted:
Papers are the owner's goods and chattels; they are
his dearest property, and are so far from enduring
a seizure, that they will hardly bear an inspection;
and though the eye cannot by the laws of England be
guilty of a trespass, yet where private papers are
removed and carried away the secret nature of those
goods will be an aggravation of the trespass, and demand
more considerable damages in that respect. Where is the
written law that gives any magistrate such a power?
I can safely answer, there is none; and therefore it
is too much for us, without such authority, to pro-
nounce a practice legal which would be subversive of
all the comforts of society. 9/
Entick v. Carrington and the effort of the Crown to
prosecute John Wilkes for seditious libel were well known
to the Constitutional Convention. The warrant against Wilkes,
signed by Lord Halifax, authorized the King's messenger to
search the offices of "authors, printers and publishers" and
to "seize.. .their papers."lam/The Court of Common Pleas, in
awarding Wilkes damages, said that this was "a ridiculous
warrant against the whole English nation"11 nd every American
statesman during our revolutionary and formative period as a
nation was undoubtedly familiar with this monument of English
freedom and considered it the ultimate expression of
constitutional law.l?/
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134
When the Framers of the Constitution met and
looked over the history of the colonies in the previous
forty years, they saw two institutional groups who had been
continually subjected to persecution by the Crown: the
religious dissenters and the Colonial Printers. For the
religious dissenters, they constructed a protection against
the establishment of a state religion. For the Colonial
Printers, they established freedom of the press in the First
Amendment and protection against the type of rummaging raids
to which the Colonial Printers had been subjected by passing
the Fourth Amendment.
As Mr. Justice White points out in Stanford Daily:
"The struggle from which the Fourth Amendment emerged is
largely a history of conflict between the Crown and the
press."13/
It does, therefore, seem somewhat ironic that the
Fourth Amendment was passed to guarantee that law enforcement
officials would not invade the offices of Colonial Printers
searching their papers for evidence of crime; and that 189
years later, the Supreme Court has permitted the police to
do precisely what the Fourth Amendment was passed to prevent.,
B. THE DANGERS OF THE STANFORD DAILY DECISION
We reject the theories put forth in Stanford Daily
that there is any effective way to limit the damage suffered
by a news organization subjected to no-notice surprise
searches for a number of reasons.
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1. Politically Appointed Magistrates
First, politically appointed or elected magistrates are not
an adequate safeguard for the First Amendment interests of press
organizations whose historical function is to expose the corruption
and misdeeds of the very political structure of which the local
magistrate is an integral part.
Local magistrates, who issue search warrants, are elected or
appointed within the political processes of the local party structure.
Frequently, they run on the same tickets as the prosecutor or the
police commissioner who is seeking the warrant. Therefore, news
media organizations believe it was completely erroneous for the
majority of the Court to conclude that these politically appointed
or elected magistrates are going to serve as an effective guardian
of the very news organizations who may be their severest critics. L4/
2. The Magistrate'sContempt Power
Second: A number of the most celebrated confidentiality
cases have involved news organizations or news reporters
who have refused to disclose confidential information indi-
cating that court orders have been broken. In a number of
cases, reporters have been held in contempt and have gone to
jail rather than comply with these subpoenaes. As criminal
contempt is itself a crime against the court, it is unrealistic
to assume that a local judge -- when a crime has been committed
against his own-authority -- is going to serve as an
effective guardian of the privacy of newsrooms.
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136
3. Confidential Sources
Third: Every desk in every newsroom contains confidential
information of some nature. Rarely does a reporter
conduct an interview with anyone where some statements or
background information is not given to the reporter in confi-
dence or for use as a source or not attributable to the source.
Of course, the cases we hear about are the cases where
confidential sources have produced evidence of serious
crime or have provided a newspaper with confidential govern-
ment documents, and the possibility of disclosure would
probably stop major information of this sort from reaching
the public in particular cases.
But what I am trying to point out is that the fabric of
journalism on a daily basis is so intertwined with obtaining
information of a confidential nature that permitting police
to search through a newsroom jeopardizes the relationship
of every reporter in the newsroom and virtually every person
he has talked to; and so undermines the independence and cre-
dibility of the press that it. would be virtually impossible
to operate effectively.
Because newspapers frequently receive information
which government may claim is itself a.crime and because
newsrooms -- unlike other premises -- contain dozens of
separate privacy interests based on the notebooks, files and
desks of every reporter, some attention should be given to the
peculiar problems of the news media.
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C. NEWS COLLECTION CRIMES
One problem which is common to most of the bills is the
exception for search warrants if the person has committed
or is committing a crime.
The government claimed, during the Pentagon Papers
litigation, that both the New York Times and its reporter Neil
Sheehan had committed a crime by merely receiving and possessing
the Pentagon Papersls' A reporter in California was prosecuted
for the crime of receiving a list of undercover agents from
local police officials' A -reporter in Maine was accused of
committing a crime by receiving a copy of a confidential letter
to the Governor. Dr. Ellsberg was accused of obstructing the
government's right to conduct the dissemination of its own
information by giving the Pentagon Papers to at least four
newspapers.
Therefore, we suggest-that if the Congress is going
to follow the approach taken by the Administration bill,
then it must offer the same type of protection
which the Senate inserted in S. 1437, prohibiting search
warrants against news organizations involved in a crime
if the crime is the otherwise lawful receipt of information
intended for dissemination to the public 18/
D. NEWSROOM RUMMAGING
The second problem involves the power to rummage through
the entire newsroom -- not only through the desk of the re-
porter who is alleged to have the information sought but
through the desks of every other reporter and editor in the
process of looking.
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This is what happened in Stanford Daily and several other
19/
cases.-
The courts have held that there are severable and pro-
tectible privacy interests within one buidling and even on
one floor of one building. For example, police cannot search
all the rooms in a rooming house because the owner of the
rooming house or one of the roomers is suspected of having
evidence of a crime. Each roomer is entitled to privacy ?1/
In a very real sense, the newsroom presents the same
problem where each desk or reporter's filing, cabinet is
like an adjacent room in a rooming house, a separate
and protectible zone of privacy.
Therefore, we suggest that, even if there are
circumstances under these bills where raids may be conducted
against news organizations, the legislation restrict the
search power to the particular desk or file cabinet of the
particular news employee suspected of having the information,
and that the power to search one desk should not be the power
to search an entire newsroom.
The examples which come to mind would be a case where
a news reporter is suspected, separate and apart from his
reporting, of being in possession of illegal heroin. Under
any of the bills, a search warrant could issue. But certainly
one reporter's vulnerability to a search warrant for this
type of crime should not subject the entire news organization
to rummaging by local police any more than the possession of
herion by one tenant of a rooming house would subject the
other tenants to having police rummage through their personal
possessions.
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139
E. GENERAL LEGISLATIVE OPTIONS
Having said all this, the question remains as to
which of these approaches appears to most adequately balance
the legitimate needs of law enforcement with the legitimate
rights of privacy of the public and the press. Here we are
faced with an attempt to blend a number of different concepts
and misconceptions which have developed over the years. Is
the information sought "fruits and instrumentalities" of
a crime -- a rule that has come down from the English
common-law theory that persons who commit crimes forfeit common-
law property interests in any items used inthe crime? 21/
Is the search incident to a lawful arrest separate
and apart from the search conducted under the search warrant?
Is the restriction on the issuance of search warrants, (the
first guarantee of the Fourth Amendent) identical to or different
from the additional guarantee that the search when conducted
cannot be "unreasonable?" Is there a presumption, underlying
the fruits and instrumentalities doctrine, that because it is
the instrumentality of crime, it is likely to be destroyed --
a consideration of recent vintage?
Certainly in view of these varying philosophies, it
might be best to look at the end result sought today rather
than the varying justifications which have developed as historical
underpinnings for the rule.
Viewed in that light, the main goal would seem to be
to preserve the evidence whether it be mere evidence, fruits
and instrumentalities of a crime, contraband, weapons or whatever.
If that is the goal -- to preserve evidence in order to
aid the police in seeking to solve crimes -- then certainly
one sensible solution might be simply to ban all search
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warrants except in those cases where police have probable cause to
believe that the information would be destroyed if sought by subpoena.
By fashioning a rule designed for one goal only -- to preserve
the evidence -- law enforcement officers would be obligated to
provide an affidavit justifying their raiding power on the grounds
that any other alternative would result in a loss of evidence.
III
THE CARTER ADMINISTRATION PROPOSAL
Because this Subcommittee is focusing on the Administration
proposal, we would like to take this opportunity to discuss that
bill in some detail.
It is the position of The Reporters Committee in general that
the Carter Administration bill is an honestly conceived and sincere
effort to protect news organizations from the danger of federal or
state surprise raids and that -- as far as it goes -- it would
substantially achieve its objectives of protecting the First Amendment
news-gathering interests of reporters, editors, publishers and
broadcasters. But it does not go far enough and we urge Congress
to broaden the coverage in a number of ways.
A. LIMITED COVERAGE AS TO PERSONS --
REPORTERS,RESEARCHERS, ETC.
The Carter proposal takes a somewhat novel approach by providing
search warrant protection to the news media and to authors, scholars,
and researchers. It does this by offering search warrant
protection to any person who has collected information "with a purpose
to disseminate to the public a newspaper, book, broadcast, or other
similar form of public communication."
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141
Our Committee feels, as we pointed out earlier, that this
bill should protect every citizen not suspected of a crime,
not just the press, because the protections of the Fourth
Amendment were designed to guarantee the privacy of all homes
and offices from intrusive police raids, not just the homes and
offices of journalists.
Therefore, The Reporters Committee would suggest that the
language of the bill be amended to cover "any person" not
suspected of a crime.
B. BROAD GEOGRAPHIC COVERAGE:
FEDERAL AND STATE WARRANTS
The Administration bill restricts no-notice search warrant
raids by federal, state and local law enforcement because it
applies to any person who collects information "with a purpose to
disseminate" it "in . . . interstate or foreign commerce."
This means that virtually any publishing or broadcasting
venture is covered because thay use the airwaves or the mails
and are, therefore, in "interstate commerce."
Reporters Committee Position:
We agree with the geographic coverage of the Administration
bill and think it is clearly within the power of Congress to not
only cover the press but to cover virtually every home and office.
We disagree with the Administration that this geographic coverage must
be limited to the press.
1. Federal Preemption: The Dangers of a Federal-Only Bill
It seems clear that, because the Supreme Court has given
Federal and state police nationwide the power to conduct surprise
searches of innocent citizens, the Congress must fashipn a
nationwide solution.
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It makes no sense, either practically or constitutionally,
to limit only the search warrant powers of Federal magistrates and
Federal law enforcement officers.
First: As the history of searches since 1970 shows,
the great majority are conducted by local officials. Out of
fifteen search warrants for news organizations, only two were
conducted by Federal officials.
Second: If the Congress were to limit only Federal
search warrant powers, then an innocent citizen in Indianapolis
would be protected from being searched by the FBI, but not by
the Indianapolis police.
Third: Limiting Federal search warrants, while per-
mitting state search warrants in the same circumstances, would
only encourage collusion between the FBI and state police --
the very type of collusion we have evidence of in California
as a way to avoid that state's shield law.
The Fourth Amendment is a guarantee for all citizens.
A citizen's constitutional right to privacy should not depend
on the happenstance of whether the search is conducted by Fed-
eral officials or state officials.
Fourth: The press has a special interest in being as-
sured that the coverage will apply to the states.
In line with Mr. Justice White's suggestion in
Branzburg3 we now have 26 states with shield laws that, in
one form or another, prohibit newspersons from being forced to
divulge confidential information sought by subpoena.
These shield laws have been weakened because, while they
protect confidential information sought by subpoenas, they do
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143
not protect confidential information seized by search warrant --
frankly because no one in the press ever conceived of a situation
where police could march into newsrooms and seize files.
Limiting Federal search warrant powers, while permit-
ting state officials to conduct surprise searches, can only
encourage other states to follow the lead of California of-
ficials who have effectively voided that state's shield law by
the simple expedient of the no-notice search.
We believe the Congress clearly has the power to
protect the privacy of all citizens by limiting the power of
Federal and state law enforcement officials to conduct searches
of homes and offices under two separate and independent consti-
tutional powers -- Section 5 of the Fourteenth Amendment and the
Commerce Clause.
Section 5 of the Fourteenth Amendment grants to the
Congress the "power to enforce, by appropriate legislation,
the provisions" of the Fourteenth Amendment. As you know,
one of the provisions of the Fourteenth Amendment is the Due
Process clause, which the Supreme Court has said incorporates
the protections of the First23/and Fourth!-/Amendments.
As this Subcommittee knows, Congress utilized Section
5 of the Fourteenth Amendment when it passed the Voting Rights
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Act of 1964. That Act prohibited certain states from using
literacy tests. Congress determined that the reserved powers
of the states to impose literacy tests were utilized in such a
way as to restrict the federally guaranteed right to vote.
The states answered that Congress lacked the authority
under Section 5 to implement a civil liberty -- such as the right
to vote.
The U.S. Supreme Court, in Katzenbach v. Mr an,5/
upheld the Congressional power as a proper exercise of Congress'
right to protect the constitutional guarantee.
Therefore, we would argue that in passing legislation
to protect privacy in the states, Congress would be doing no
more than exercising the very same powers under Section 5 that
it exercised when it protected the right to vote.
Certainly, the Justice Department and the State At-
torneys General cannot be heard to argue that the right to cast
a ballot is more important than the right to be secure in one's
home.or office from unreasonable searches. In fact, one might
argue, as Justice Brandeis has argued, that the Fourth Amend-
ment is the most fundamanetal of all protections because it is
"the right to be left alone" by government. Z6/
b. The Commerce Clause and the. Omnibus Crime Control Act
The Commerce Clause vests in the Congress the power to
"regulate commerce-among the several states." Using this
power, Congress has already enacted broad privacy protections
for homes and offices against searches by wiretaps and other
forms of electronic eavesdropping.
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145
This nationwide privacy law was contained in the Omni-
bus Crime Control Act of 1968 which prohibits Federal and state
officials from wiretapping the premises of an establishment,
or seeking information relating to an establishment, "the opera-
tions of which affect interstate or foreign commerce."Z-71 Nor
may any device be used which the eavesdropper has reason to be-
lieve was sent through the mail or interstate commerce28/
Only under precise conditions established in the Act by
Congress is intrusion by search warrant permitted.
In short, the Congress has protected the privacy of
virtually every business establishment and millions of indi-
vidual residences from unreasonable searches by wiretaps and
eavesdropping devices. Therefore, it clearly has the power to
protect these same homes and businesses from unreasonable
searches by police.
Furthermore the Act provides for civil and criminal
penalties against.Federal and state officials who conduct
eavesdropping searches in violation of the Congressionally
prescribed standards.
Of course, when we come to the press, the question
becomes much simpler because every newspaper, broadcast
station, book and magazine publisher -- and their employees --
are. involved in commerce. Newspapers, magazines, and books
travel across state lines as do broadcast signals.
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In conclusion, it is quite clear that Congress has
the constitutional power to protect the homes and offices of
all citizens from surprise raids by Federal or state law en-
forcement officers under its power to implement the protections
of the Fourth Amendment and under its power to protect persons
and premises in any way related to interstate commerce.
C. INFORMATION PROTECTED-'W'ork, product" vs. nonwork product
"documentary materials."
The Administration bill breaks the information oreoared
by the news media into two categories: "work-product materials"
which are given substantial protection from search warrants; and
nonwork product "documentary materials" which are given less
protection.
While these differences remain a little hazy, Administration
officials have explained that "work-product" materials would cover
such things as interviews, story drafts, internal memoranda,
notes, etc; and nonwork product "documentary materials" would
cover documents--such as a hostage note--prepared by a third person
not for special use by the press.
1. Searches for "Work-Product Materials"
A search warrant is only permitted against a news organiza-
tion or news person for "work-product materials" if,
(1) There is probable cause to believe that the reporter
himself is involved in a crime (except it may not be a crime
involved with the possession of the information itself.)
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(2) The information sought relates "to the national
defense, classified information or restricted data" as defined
under various federal laws; or
(3) There is reason to believe "that an immediate seizure by
search warrant is necessary to prevent the death of or serious
bodily injury to a human being."
2. Searches for Nonwork Product or "Documentary Materials"
A search warrant for "documentary materials" against
a news person or a news organization will be allowed in five
circumstances:
(1)
the news person has committed a crime (see above),
(2)
the information relates to the national defense (see
above)
,
(3)
prevention of serious bodily injury or death (see
above),
-
(4) danger of destruction of the materials sought, and
(5) the news organization has refused to obey a subpoena
for the information sought and all court appeals hive been
exhausted or a delay--because of an appeal--"would threaten
the interests of justice."
Reporters Committee Position:
It is the position of The Reporters Committee that no
distinction should be made between work-product and nonwork-
product material. The reasons for this involve the practical
information collection methods of journalists, lawyers, physicians
or other citizens whose files would be subject to search under
the Administration proposal.
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It is our experience that most reporters, like other
professionals or businessmen, keep files by subject matter
and do not generally break them up between files containing
notes and files containing documentary materials supplied by
a third party. In fact, many reporters will write notes on
documentary materials supplied by third parties or conversely
will intersperse documentary materials with their notes. This
being the case, a search for nonwork-product materials will
almost always permit police to inspect work-product materials.
It would, therefore, be our suggestion that the Administration
bill should only permit searches against third parties not
themselves involved in a crime except if: (1) there is probable
cause to believe that the information sought relates to the
national security (and we will discuss this exemption in more
detail below); or (2) there is probable cause to believe that
immediate seizure is necessary to prevent serious bodily injury
or death, or (3) there is probable cause to believe that the
information will be destroyed.
While we realize that we, in the press, would be giving up
some protection for work-product materials designed specifically
for journalists, we think that this would be a necessary and
modest sacrifice in order to obtain broader coverage for all
citizens who are potential targets of no-notice searches.
O. THE NATIONAL SECURITY EXEMPTION
The Administration has quite thoughtfully, we think,
declined to give search warrant authority if the crime involves
the receipt, possession or communication of information. However,
if this information is considered "classified information" or
"restricted data" under a number of federal laws, then the search
could take place.
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149
We find this exemption entirely too vague and overbroad.
There is so much information which is misclassified by the
of
government and so much "restricted data" which is,only peripheral
interest, that permitting a search warrant for possession of
these categories of information makes this purported protection
virtually useless.
Therefore, we would only permit a search warrant to issue
for possession of information if there was probable cause to
believe by affidavit that the information fell under the doctrine
of New York Times v. United States -- that it is a "direct,
immediate and irreparable injury to the national security."
Any lesser standard leaves in the hands of self-serving
government officials the power to decide virtually,at their own
discretion,which citizens may be searched and which may not be searched
for national security information -- information which may be at best
tangential or of mimimum danger.
E. THE"REASON TO BELIEVE" EXEMPTION
We believe that the standard of "reason to believe" that
immediate seizure is necessary to prevent death or serious bodily
injury is too vague. We suggest that the standard must be
"probable cause" supported by an affidavit and we would suggest
that this standard also be included in the exemption which permits
a search for the information which would be destroyed or altered.
F. THE "INTERESTS OF JUSTICE" EXEMPTION
We would completely eliminate exemption 4 permitting a search
if materials "have not been produced in response to a court order
and all apellate remedies have been exhausted" or if the refusal to
obey the court order would result in a "delay in an investigation
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or trial would "threaten the interests of justice."
If a journalist or other citizen loses litigation
involving a subpoena for information, he has at that point a
choice: he may turn the information over or he may go to
jail. For example, under the Administration proposal, after Mr.
Farber refused to comply with the subpoena against him and
lost the appeal in the Supreme Court, Mr. Farber's home
and the entire New York Times could have been searched.
We think that the powers of the court to imprison
and fine persons who lose subpoena litigation is quite
sufficient punishment and does not warrant giving the
government the additional power to raid and rummage at
will.
In addition, there is no reason to permit a search
warrant merely because there is going to be a "delay in
an investigation or trial" which would "threaten the interests
of justice." Once again, as in the national security
exemption section, the government is giving a vague and
completely discretionary power to the courts without any
clear standards. Trials are delayed every day for all
kinds of reasons: prosecutors are overworked or defense
counsel have other commitments or judges have to attend
graduation ceremonies of their children. We see no reason
to grant the drastic remedy of a surprise search merely
because of a delay in the trial.
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151
G. REMEDIES
The Administration bill makes it a crime to serve a.search
warrant in violation of the law, but provides no criminal penalties.
Reporters Committee Position
It would be our position, that Congress should provide for
criminal penalties for violation of this Act, signifying to
both federal and state law enforcement officials that the search
of innocent third parties is a serious matter and may be done only
in compliance with the statute or not at all. We think it is
vitally important to provide criminal penalties because the
Supreme Court has fashioned extensive protection for public officials
sued for civil damages on claims that these officials have violated
constitutional or statutory rights. In a series of recent cases,
the Court seems to be saying that civil damages cannot be levied
against public officials for violation of constitutional rights
unless the violations are intentional and not in good faith.
Therefore, given the practical difficulties of proving bad
faith against a public official -- it would appear that a jail
sentence might be as good, if not better, a deterrent to assure
compliance with Congress' will.
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APPENDIX TO TESTIMONY
OF THE REPORTERS COMMITTEE
May 31, 1979
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2. Warden v. Hayden, 387 U.S. 294, 315 (1967) (Douglas,
J., dissenting) (quoting Rutland, The Bill of Rights 25 (1955)).
3. Id. at 316 (Quoting 3 Elliott's Debates 448-49).
4. United States v. Poller, 43 F.2d 911, 914 (2d Cir.
1930).
5. Boyd v. United States, 6 S.Ct. 524, 532 (1886).
6. Id. at 531-32 (quoting from Entick v. Carrington
and Three Other King's Messengers, [1765] 19 How. St. Tr.
1029).
7. Warden v. Hayden, supra, at 312 (Fortas, J.,
dissenting).
8. Id. at 313 (Douglas, J., dissenting) (quoting from
Entick v. Carrington [1765] 19 How. St. Tr. 1029, 1065).
9. Boyd v. United States, supra, at 531 (quoting
Entick v. Carrington [1765] 19 How. St. Tr. 1029).
10. Stanford v. Texas, 379 U.S. 476, 483 (1965)(quoting
Lasson, Development of the Fourth Amendment 43).
11. See Stanford v. Texas, 379 U.S. 476, 483 (1965).
12. Boyd v. U.S., supra, at 530.
13. 46 U.S.L.W. 4546, 4550 (U.S. May 31, 1978)(Nos.
76-1484 & 76-1600)(quoting Stanford v. Texas, 379 U.S. 476,
482 (1965)).
14. See id. at 4551.
15. See New York Times Co. v. United States, 403 U.S.
713 (1971T
16. See People v. Kunkin, 9 Cal. 3d 245, 107 Cal. Rptr.
184 (1973).
17. See United States v. Ellsberg, Crim. No. 9373 (C.D.
Cal. 1971).
18. See S. 1437 ?? 1301, 1344, 1733 (1977).
19. See generally Note, Search and Seizure of the Media:
A Statutory, Fourth Amendment and First Amendment Analysis,
28 Stan. L. Rev. 957 (1976).
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20. See also Warden v. Hayden, 387 U.S. 294, 325 (1967)
(Douglas, J., dissenting).
21. See, e.g., id. at 310-11 (Fortas, J., dissenting);
Boyd V. United States, 116 U.S. 616, 623-24 (1886); United
States V. Kirschenblatt, 16 F.2d 202, 203, 51 A.L.R. (2d
Cir. 1926)(L. Hand, J.).
22. Branzburg v. Hayes, 408 U.S. 667, 106 (1972).
23. See, e.g., Near v. State ex rel. Olson, 283 U.S.
697, 707 (1931).
-24. See, e.g., Wolf v. Colorado, 338 U.S. 25, 27-28
(1949).
25. 384 U.S. 641 (1966).
26. [The makers of our Constitution] conferred, as
as against the government, the right to be let alone--
the most comprehensive of rights and the right most
valued by civilized men. To protect that right, every
unjustifiable intrisuion by the government upon the
privacy of the individual, whatever the means employed,
must be deemed a violation of the Fourth Amendment.
Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting).
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SEARCH WARRANTS
SINCE 1970
APPENDIX B
15 Incidents of Search Warrants
Issued on the News Media Since 1970
1. April 1971, Stanford Daily, Palo Alto, Ca. Police
were seeking unpublished photos of demonstration at
a hospital.
2. October 1973, Berkeley Barb, Berkeley. Police sought.
letter from the August Seventh Guerilla Movement;
warrant served on the attorneys for the Barb.
3. February 1974, Berkeley Barb, Berkeley. Police were
seeking a letter from the Symbionese Liberation Army
concerning the Patricia Hearst kidnapping.
4. March 1974, KPFA-FM, Berkeley. Police were seeking
letter to station from the Symbionese Liberation Army
regarding the death of an Oakland school official.
5. June 1974, Berkeley Barb, Berkeley. The Federal
Bureau of investigation was seeking a letter from the
Black Liberation Army; warrant issued on attorneys.
6. June 1974, Phoenix, San Francisco. The Federal Bureau
of Investigation was seeking a letter from the Symbionese
Liberation Army; warrant issued on attorneys.
7. October 1974, KPFK-FM, Los Angeles. Police were
seeking tape recorded message from the-New World Liberation
Front regarding a hotel bombing.
8. October 1974, KPOO-FM, San Francisco. Police were
seeking a letter written by the New World Liberation
Front concerning a hotel bombing.
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SEARCH WARRANTS
SINCE 1970
9. October 1974, L.A. Star, Los Angeles. Warrant issued
for search of tabloid's offices; police were seeking
unpublished articles, address books, and unpublished
photos in regard to a complaint by a star that her face
was used without authorization superimposed in a nude
photo.
10. September 1977, WJAR-TV, Providence, R.I. Police
were seeking out-takes of picket line disorder in
Warwick, R.I.
11. December 1977, KRON-TV, San Francisco
12. December 1977, KTVU-TV, San Francisco
13. December 1977, KGO-TV, San Francisco
14. December 1977, KPIX-TV, Oakland
In all four of the above situations, police were
seeking unpublished film of a disorder at a houseboat
community.
15. April 1978, Associated Press bureau, Helena, Mont.
Police were seeking unpublished notes and tape
recording of interview with murder suspect in custody.
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 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040017-9
SUMMARY OF LEGISLATION RESTRICTING SEARCH WARRANTS --96th--
Sponsor
Geographic
Persons
Search Warrant
.Bill Number
Cove ra a
Covered
Permitted IF...
Fed.
Fed. &
All
Press
Involve-
Danger of
Only
State
Persons
Only
ment in
Removal
Crime
1. S.115
--- ----Mathias
--------
-------
x
---------
x
---------
-------
x X
---------------------
2. H.R. 1373
Gud er
x
x x
3. H.R. 380
__ Guyer -------
------
x
--------
x
---------
------
x x
--------- -----------
4. H.R. 1437
--Quayle
------
-------
x
---------
x
---------
-------
x x
----------------------
5. H.R. 283
Drinan
x
x
x
6. H.R. 1305
x
x
x
Saw er
-----
x
---------------------
7. H.R. 322
x
x
x
Fish
-
323
x
Fis
___Fish
--
---
--X---
---x-----------------
9. H.R. 368
x
x
x x
Green
---------------
------
---------
--------
--
10. H. R. 1293
- Crane
--------
-------
x
---------
---------
x
----
No exceptions
(Administration)
--
----------------------
Press F:
others
11. H.R. 3486
publish
ing
I
(See Media Alert)
-
______
_______
--------
(Administration)
-----------
Press &
others
x x
12. S. 855
publish
ing
(See
Media Alert)
Bayh--------
------
-_------
-
------
------
---
-
-------------
APPENDIX C
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158
APPENDIX D
STATEMENTS OF LEADING MEDIA FIGURES
--from The News & The Law
}nward K: SmrtI rABEWe_v
`"When f was.4a new young. report
er.,
at the United:Press.iti Nazi Berlin. 4=..
-there was a knock at the, door
_!5 Gestapo men barged past me begin'I
opening every desk and studying every' ?.
pieceof paper they could find Su
hours. later they left-.7.- -'_ I remembe'
-thanking God thus couldn't happen in
i
America.: Well now:it:caa It . is_the.
;worsr