Crackdown on the press
| Quincy, Mass.
Scott Low heads one of the nation's more successful newspaper operations. The Quincy Patriot Ledger, circulating in 28 towns just south of Boston, is climbing in readership--even as many newspapers are in danger of folding. It's a respected, profitable journal.
And yet Mr. Low, its publisher, is edgy.
''It's hard to point out just one thing,'' he explains. ''It's a series of events. We're being nibbled to death.''
He's referring to a number of challenges being faced by not only his newspaper, but the press in general. Mr. Low, a director of the American Newspaper Publishers Association, is a leader in the fight against proposed congressional legislation that would limit the media's access to government documents under the Freedom of Information Act (FOI).
Mr. Low says he sees a pattern of activity at both the federal and local levels to keep newspapers from doing their jobs. He, like many others in the journalism profession, argues that attacks on the press are attacks on a free society. The best defense, he argues, is to convince readers that the interests of the public and the media very often coincide. To do that, his paper is involved in an aggressive program of community outreach
It would be hard to find a more appropriate setting for such a program. The Quincy Patriot Ledger--one of the nation's oldest newspapers--has been publishing the news since 1837, in the only city in America that can call two presidents (John Adams and John Quincy Adams) its own.
The Ledger, say its editors, takes its constitutional freedoms very seriously--counseling its reporters in the tradition of a free and independent press. The paper also sponsors informal give-and-take meetings in the communities in its circulation area, and extends an open invitation to subscribers to ''share your news with us.'' In a regular editor's column, the paper discusses the current state of Americans' freedom.
Such efforts by the Ledger and other media are very much in keeping with the American tradition of a vigorous and unrestrained press. But not everyone, it seems, wants to see the US press quite so untrammeled. A not quite so free press?
According to many analysts, a number of efforts are under way to bring the press to heel. Individually, these efforts may not seem to constitute serious threats to press freedom. But some experts warn that, taken together, these attempts to tether the press are of serious concern--and do threaten to diminish the First Amendment guarantee of freedom of the press. These challenges come at a time when the press is already stinging from some especially tough criticism--some of it, admittedly, well deserved.
The media in general and newspapers in particular are still jolted by last year's Pulitzer fiasco--when a prize was awarded, and then withdrawn, for an invented story about an eight-year-old heroin addict. And then Hollywood took a shot at the press in ''Absence of Malice,'' a controversial film about the disastrous results of irresponsible reporting.
''Absence of Malice'' screenplay writer Kurt Luedtke, a former executive editor of the Detroit Free Press, recently chided newspaper publishers at their annual convention.
''There's no such thing as the public's right to know,'' he said.
''You made that up,'' he continued, ''taking care not to specify what it was the public had a right to know.''
President Reagan has claimed that many news reports are too critical of his administration. Reports on the economy often stress the woes of the poor and neglect signs of economic recovery, he insists.
Ledger editor William B. Ketter senses in all this a belligerent mood, both locally and nationally.''The First Amendment (of the US Constitution) doesn't give anything special to the press. The people should be in the spotlight. But we (the press) are their surrogate. We're fighting for their rights.''
''But we have to make it clear. It's not the press's rights. It's the people's rights,'' insists Mr. Ketter. Whose right to know?
Actually, it's this issue--the people's rights, and whether they are synonomous with press rights--on which much of today's constitutional controversy turns.
In 1791, the so-called ''freedom of the press'' plank of the Constitution was penned by the Founding Fathers. Article 1 of the Bill of Rights says, in part: ''Congress shall make no law . . . abridging the freedom of speech, or of the press.''
Does the Constitution adequately protect a free press?
Some critics say it's not supposed to. They insist that the First Amendment was written not to protect the media - but to establish the people's right of access to information. And they charge that the media often stand above the law and against the national interest. How? By withholding information vital to the courts, they say, and disclosing data which could endanger public and private safety. The struggle over 'FOI'
Jack C. Landau, who heads the Reporters Committee for Freedom of the Press in Washington, D.C., confirms that there is a howling storm today over the issue of press freedom. He likens this period to the pre-Watergate 1970s, when Vice-President Spiro T. Agnew threw down the gauntlet to the media's ''nattering nabobs of negativism.''
A key priority of the Reporters Committee today, he says, is to counter efforts to amend (and, in his view, water down) the federal Freedom of Information Act (FOI) - which allows the media to apply for access to certain classified governmental materials.
The FOI, signed into law by President Lyndon Johnson in 1966, is now in trouble on Capitol Hill and within the Reagan White House. FOI was considered landmark legislation in guaranteeing the ''public's right to know'' when it was adopted 16 years ago. President Johnson said at the time: ''A democracy works best when the people have all the information that the security of the nation permits. No one should be able to put up curtains of secrecy around decisions which can be revealed without injury to the public interest.''
But now, administration officials, including spokesmen for the Central Intelligence Agency and Federal Bureau of Investigation, insist that broad media access to government documents is costly and unnecessary. They say that FOI is really seldom used, fails to turn up pertinent information for the public, and often jeopardizes internal security. They want the act amended.
In the past two years, congressional committees have chipped away at FOI - exempting from press and public view, among other things, Federal Trade Commission documents relating to product safety and truth-in-advertising, as well as files outlining various standards and rules of the Internal Revenue Service.
Richard M. Schmidt Jr., general counsel of the American Society of Newspaper Editors, counters critics' charges that FOI disclosures are usually relatively unimportant. He cites a Library of Congress Congressional Research Service study regarding press disclosures under FOI from 1972 to 1980.
''Stories included those that disclosed the radiation danger to Utah residents as a result of the testing of atomic bombs, the story on CIA confinement of a foreign political figure to a mental hospital, stories on President Nixon's attempt to pressure the Corporation for Public Broadcasting, and a story disclosing the fact that supervisors in the Nuclear Regulatory Commission had suspicions prior to the famous accident at Three-Mile Island that the plant was dangerous,'' Mr. Schmidt points out.
Insiders say prospects for further restraints on media access are dependent upon House and Senate action - possibly before the summer recess. However, the Senate judiciary committee, in a compromise between liberals and conservatives, has voted unanimously against making any major changes in FOI.
Meanwhile, the Supreme Court recently dealt a blow to the media in a ruling on a case regarding FOI exemptions. In US v. Washington Post, the high tribunal decided that certain information (in this instance, naturalization and citizenship records) can be shielded from disclosure under FOI when government officials believe that disclosure would invade personal privacy. Other fronts in the battle over disclosure
President Reagan, using an executive order, has broadened the authority of government officials to withhold information from the public on the grounds of national security. Mr. Reagan insists that these moves will bring a ''proper balance'' between the public's right to information and the government's security needs. Media critics and political liberals counter that the executive order is yet another restraint on First Amendment guarantees.
The Reagan administration and the media are trading punches in yet another ring over the proposed Intelligence Identities Protection Act. A tough, and unprecedented, ''spy'' law, this legislation would make it a crime for anyone - including journalists - to reveal the identity of American agents operating undercover abroad. Once again, the citizens' right to know is pitted against the government's need to maintain secrecy.
Opponents raise questions about the constitutional implications of such measures. Among them is Sen. Edward M. Kennedy (D) of Massachusetts, who says that no loyal American would intentionally endanger covert intelligence officers.
''The question is how to punish such attempts without rendering our legislation unconstitutional and without unnecessarily chilling a vigorous free press,'' Senator Kennedy points out.
Meanwhile, on the state and local scene, the news media are struggling to settle a host of other constitutional issues. The Reporters Committee for Freedom of the Press provides a current assessment of some of these clashes:
* Confidentiality. In the 1972 Branzburg case, the US Supreme Court held that reporters who are eyewitnesses to crimes may not refuse to divulge their confidential sources to a grand jury. Since that time, the court has generally left the question of ''reporter's privilege'' up to lower courts.
Generally, a reporter is most likely to be ordered to reveal information to a court if it is considered vital to ensure a fair trial, and if there are no other means of obtaining the information.
Some 26 states now have so-called ''shield laws,'' which prevent reporters from being held in contempt for refusing to divulge sources. Some states offer only partial immunity. And other states, on occasion, offer reporters limited constitutional protections in the absence of an explicit ''shield'' measure.
* Access to courts. The US Supreme Court has affirmed the press's First Amendment right to attend criminal trial hearings in most cases. And recent decisions indicate the high court may be modifying its earlier stance which allowed lower courts to close pretrial hearings.
Now, the Supreme Court is reviewing a Massachusetts ruling that trials involving sex crimes must automatically be closed when minor victims are testifying. The court could declare the automatic closure law unconstitutional. Or it could agree with the California Supreme Court, which recently upheld a state closure law. It could also use this case to spell out trial closure standards.
* Libel. Recent court decisions have raised more questions than provided answers. Generally, the Supreme Court has left standing lower court rulings that favor the media. And most of these cases have failed to answer key questions about the rights and obligations of the news media when reporting on a broad spectrum of issues. Among unanswered questions: When does sloppy reporting become evidence of actual malice? When can an opinion in an editorial become the basis for showing actual malice? Do private persons accused of libel or defamation have the same constitutional protections as media defendants?
* Cameras in the courts. The Supreme Court has allowed states to experiment with cameras in the courtroom. In a case called Chandler v. Florida, for example , the high tribunal said that state courts have the authority to allow television coverage of criminal trials, even over a defendant's objection, unless it can be shown that sensationalized or biased coverage might clash with the defendant's right to a fair trial. New technology, new questions
Looming in the future are even greater clashes over access to information, as more and more data find their way into the memory banks of computers. A study released last fall by the Congressional Office of Technology Assessment (OTA) points out that the growing use of computers, coupled with modern communications ''will have profound long-term effects as dramatic as those caused by the invention of the printing press.''
The OTA says new conflicts over the freedom of the press will arise when more newspapers become electronic data-bases - as some are already. For example, if newspaper text is transmitted to home TVs, should the federal government be able to impose a ''fairness doctrine'' requiring equal wordage for opposing viewpoints? After all, television and radio stations are already required to do this. Why, some ask, shouldn't electronic newspapers come under similar restriction?
Another key question: Does public ownership of the airwaves create a special right to public access? Should government loosen the regulation reins on broadcasting? Or, conversely, should tighter federal restrictions, such as the ''fairness doctrine'' be imposed on the print media? The courts are only beginning to provide answers to such questions.
''As the electronic media evolves more, either they will get more freedoms or the print media will get less,'' predicts publisher Low.
Mark Fowler, chairman of the Federal Communications Commission, has recently sparked controversy by calling for a loosening of the reins on broadcasting, including a repeal of the so-called ''fairness doctrine.''
In an interview with US News & World Report, Mr. Fowler advocates a lifting of the longtime yoke of controls on radio and television - restrictions which he says are in violation of the First Amendment. He says he even opposes FCC censorship of obscenity on cable television.
''We have criminal statutes that deal with obscene, indecent, or profane programming, and they apply to cable television, too,'' he points out.
Others feel differently, however, and want some modicum of regulation. For instance, Peggy Charren, president of Action for Children's Television, pushes Congress to require that cable systems provide free locking devices to subscribers so children can't watch ''adult'' entertainment.
Testifying before the Senate communications subcommittee, which is considering a new framework of laws for the regulation of cable television, Mrs. Charren says the alternative would be government censorship - which she terms ''the beginning of the end of the First Amendment.''
''A structural mechanism is infinitely preferable to mucking around with the Constitution,'' the children's television activist insists.
Rep. Edward J. Markey (D) of Massachusetts, a member of the House telecommunications subcommittee, counters Mr. Fowler's argument that the ''fairness doctrine'' offends the Constitution. He also disputes industry claims that the growing number of radio and television stations eliminates the need for government restriction.
''Repealing the fairness doctrine would harm information-poor segments of our society'' Mr. Markey claims. ''At this time there are parts of our society that have neither the political clout nor economic prowess to make their own views heard. The First Amendment right of the public to receive information would be seriously undermined, if the vehicle of enforcing that right - no matter how clumsy - were not maintained.
Next: Freedom -- but at what price?
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