NEWSWATCH by Thomas Griffith: When the Law and the Press Collide

Newswatch

The mighty New York Times has been a melancholy place: its presses stopped by a strike, its newsroom empty; one of its reporters, Myron Farber, yo-yoing between jail cell and court hearings on contempt charges; the paper itself hit by a $100,000 fine for contempt and a $5,000-a-day fine for every day it continued to defy a New Jersey court in the same Farber case. To top it all off, in its legal difficulties, the Times seemed to be losing public support and press sympathy—partly because of "terrible coverage," says A.M. Rosenthal, the paper's top editor, who fumes because there is no Times to set the public straight.

The Farber case is a complicated legal tangle that lends itself to tendentious simplicities. In lawyers and journalists alike, it seems to bring out the worst in exaggerated rhetoric and absolutist moralizing.

Should Farber, whose reporting led to a doctor's indictment for murder, be forced to turn over all his files and notes for a judge to look at in camera! To do so, argues the Times, would be an offense against the freedom of the press guaranteed by the First Amendment. Not to turn over the files, pleaded the defense lawyer, would be to deny his client the right to a fair trial, guaranteed by the Sixth Amendment. When the First and Sixth Amendments collide, lawyers and judges (being a closed society) tend to take the Sixth. Law, more than the press, they see as an older, basic guarantor of liberty. And wasn't even Richard Nixon as President forced to give up his papers? Is the press alone arrogantly above the law? Arrogance is a buzz word these days.

To a layman, the Farber case seems less a study in press rights and privileges than in how quickly law rallies around and sustains even a bad decision. Reporters often promise confidentiality to get a story; if they can routinely be made to break such promises in court they become an unwilling "arm of the law." So in practice some judges have ordered confidential documents sur rendered only if three tests are met: that there is a "compelling state interest"; that the evidence sought can be shown to be relevant ("particularity"); and that it cannot be obtained in any other way. But in the Jersey case, the lawyer asked for everything. The judge made no attempt to narrow the request, and when the Times asked for a hearing, he peremptorily turned it down. This is surely arbitrary behavior, but all Jersey courts sustained it—until State Attorney General John Degnan went to the Supreme Court to argue successfully last week that the Times deserved a hearing, and Farber should not be jailed in the meantime.