Press: Fallout from the Farber Case

A blizzard of subpoenas has reporters chilled

Not many of the journalists, civil libertarians and other citizens who have rallied to the cause of jailed New York Times Reporter Myron Farber have ever heard of Joe Pennington. But Pennington is facing a 60-day jail term for refusing to reveal his source in a murder case he covered last year for Wichita, Kans.' KAKE-TV—the same principled stand that put Farber behind bars.-

Pennington is one of dozens of unsung Farbers around the country whose notes have been subpoenaed by prosecutors or defense attorneys in the wake of the Times incident. No one can say how many of the subpoenas were directly inspired by that widely publicized case, but the number appears to have risen dramatically. The Washington-based Reporters Committee for Freedom of the Press, which is looking into at least 29 cases involving journalists who have been subpoenaed in the past 18 months, notes that new cases are coming in at the rate of 100 to 125 a year. In many instances, the subpoenas are being issued despite state "shield" laws that are supposed to protect reporters from such depredations. "There are so many confidentiality cases pending now that we just can't keep track of them all," says Jack Landau, the committee's director. Adds Don H. Pace, an Ohio lawyer with a number of newspaper clients: "It's as if somebody suggested this approach at a meeting of prosecutors. There's been a flood."

The flood did not actually begin with Farber, but with the Supreme Court's 1972 ruling in Branzburg vs. Hayes that reporters could be compelled to testify before grand juries. Many journalists argue that Branzburg and a few later decisions are proof of a growing judicial—and perhaps public—hostility toward the press, and fear that prosecutors and defense attorneys are exploiting that mood.

Yet there is evidence on the other side as well. One of the year's most widely denounced Supreme Court rulings—Zurcher vs. Stanford Daily—which authorized some police searches of newsrooms, has apparently not touched off the feared wave of such raids. In addition, a Gallup poll this month indicates that Americans support a reporter's right to protect confidential sources by a margin of 3 to 1, more than in similar surveys in 1972 and 1973. Still, more and more lawyers are using subpoenas of reporters as gambits in criminal trials. "They may even think they have to," says Floyd Abrams, the Times attorney representing Farber.

Some reporters have agreed to turn over their notes after subpoenas were redrawn to demand only pertinent information or to ensure that sources remained confidential. Reporter Robert Andrews of the Syracuse Post-Standard at first refused a judge's request to disclose his sources for an inquiry into local corruption, but agreed to testify when the judge said he did not have to divulge the name of his only confidential source.