University of Virginia Library

NIXON vs. THE MEDIA

By PHILIP KIMBALL

Newsweek magazine
labeled it "a struggle without
precedent in the history of the
United States." TIME plans a
cover story about it next week.
At least two dozen bills
directly relating to it have been
submitted during this session
of Congress. And a Senate
subcommittee just concluded a
four week long hearing on the
matter yesterday.

The debate over the rights
of newsmen has finally reached
such a high pitch that Congress
has been forced perhaps
against its better judgment  
to reaffirm the rights and
privileges granted by the First
Amendment.

Freedom of speech, with all
its implications, seems to be
receiving abuse from all
quarters To believe some
newsmen is to believe that
President Nixon is out to get
the news media and anyone
associated with it. And yet to
believe some Nixon officials is
to believe that the national
news media is determined to
undermine the present
administration with "elitist
gossip" and "ideological
plugola."

Always At Odds

The government and the
press have always been at odds
with each other. The
government has constantly
been wary of the uncontrolled
"fourth estate" and its
criticisms of federal policy.

Even Thomas Jefferson –
the so-called 'father of the free
press' blasted it. As President
he charged, "The artillery of
the press has been leveled
against us... The abuses of an
institution so important to

freedom...are deeply to be
regretted, in as much as they
tend to lessen its usefulness,
and to sap its safety."

But the current battle
between the government and
the media has reached
unparalleled proportions and,
according to some observers,
threatens to leave a permanent
scar on the basically
unrestricted freedom of the
press.

Many believe that the crisis
will have far reaching effects
because the present
administration is employing
the law in its attacks. Never
before the Pentagon Papers
case had a major newspaper
been enjoined from
publication. The trial of one
time RAND researcher Daniel
Ellsberg, who stole the
documents in the first place, is
still in progress.

Local Television Threatened

The Federal
Communications Commission
(FCC) has directly threatened
local television stations for
broadcasting what the White
House terms network "liberal
bias."

Just last Friday the
Corporation for Public
Broadcasting (CPB) announced
the cancellation of a half-dozen
public affairs programs for lack
of funding Public television
had been guaranteed federal
subsidies until the
administration became irritated
over some of the viewpoints of
some of its news
commentators

Newsmen feel they can no
longer guarantee news sources
any degree of confidentiality.
In the past four months at least
four newsmen have chosen jail
over the courtroom to keep
confidential information from
the hands of government
investigators.

Last June's Supreme Court
ruling in the Branzburg case,
which involved a Kentucky
reporter's refusal to identify
two hashish makers referred to
in an article, argued that the
First Amendment does not
exempt a reporter from
withholding information in a
criminal investigation.

* * *

One man in particular has
been more than customarily
concerned over rights
infringement. As chairman of
the important Senate
subcommittee on
constitutional rights, Senator
Sam J. Ervin, Jr. (D N C) has
had to convene the
subcommittee twice in the past
two years to examine alleged
First Amendment violations.

Opening the first session in
Fall, 1971, the man referred to
by many as 'Congress'
constitutional lawyer', wanted,
"...it is apparent that in today's
American people doubt the
vitality and significance of the
First Amendment's guarantee
of freedom of the press."

Following the Pentagon
Papers trial by only a number
of weeks, the hearings focused
on the government's right to
enjoin newspaper publication.

Constitution Thwarted

Speaking before the
subcommittee, New York
Times Executive Vice President
Harding Bancroft observed,
"...the fact that publication was
enjoined for 15 days itself
thwarted and subverted the
Constitutional principle of
freedom of the press."

"...the basic reason that
impelled the Times to publish
the material was that we
believed it was in the interest
of the people of this country
to be informed. Once the
material fell into our hands it
would have been an abnegation
of responsibility and a
renunciation of our obligations
under the First Amendment
not to have published it."

Before the Supreme Court.
Justice Department lawyers
had argued that, in spite of the
First Amendment, "the
authority of the Executive
Department to protect the
nation against publication of
information whose disclosure
would endanger the national
security stems from two
interrelated sources: the
Constitutional power of the
President over the conduct of
foreign affairs and his
authority as
Commander-in-chief."

The high court's split 6-3
decision offered no emphatic
confirmation of freedom of

'Sir Ervin & the Knights of the First'

speech rights. Some observers
believe the uncertainty of the
court as a whole prompted
further government challenges
against the press.

* * *

Ervin's subcommittee also
reviewed the alarming rise of
the number of subpoenas
issued to newsman. CBS
President Frank Stanton
testified that, "...NBC and CBS
alone received 121 subpoenas
in the last 30 months. The
cumulative effect of these
subpoenas has placed
substantial burdens on
personnel, most of whose
primary function should be
gathering and publishing the
news."'

Bancroft said he felt
legislation protecting reporters'
rights was not needed at the
time. Instead, he hoped that
the courts would be able to
settle the question.

"There is the danger," he
said, "that legislative attempts
to define rights under the First
Amendment may raise more
problems than are put to rest,
and thus prevent the courts
from making reasoned
determinations based on the
particular facts and
circumstances of the cases
before them."

Court Backed Newsman

At the time of the first
session the Branzburg case was
still in litigation. The Caldwell
case, involving a Federal Grand
Jury subpoena for a New York
Times reporter's notes on the
Black Panther Party in San
Fransisco, had reached the
Ninth Circuit Court of
Appeals. The court offered the
press hope when it backed the
newsman, overturning lower
court decisions.

But in another case, In re
Pappas. the Massachusetts
Supreme Court ruled that a
reporter for WTEV, an ABC
affiliate in New Bedford, had
to divulge all information
gathered when he spent an
evening in a Black Panther
building. All three cases were
eventually heard together by
the high court.

The first subcommittee
hearings closed in early 1972
with a note of guarded
optimism. The subpoena cases
had not yet been heard and the
press had won a victory over
the Pentagon Papers. Many felt
confident that the First
Amendment would survive the
upcoming court challenges.

Supreme Court Decision

That June the Supreme
Court shocked the press when
it handed down its 5-4 decision
in the Branzburg case. "The
First Amendment does not
relieve a newspaper reporter of
the obligation to that all
citizens have to respond to a
grand jury subpoena, and
answer questions relevant to a
criminal investigation..." the
court ruled.

The decision was significant
because it said the reporter had
been concealing the criminal
conduct of his source, in this
case the Black Panthers, and
evidence he had gathered. It
placed a Grand Jury
investigation over the rights of
newsmen to keep their sources
confidential.

Not only the press, but the
entire news media, was up in
arms. Some felt the ruling,
turning on a single vote, was
only possible because of the
three essentially anti-press
justices appointed by President
Nixon.

Bitterness against the
administration turned into
open hostility. The very
foundation of a free press had
been knocked loose. If a
reporter could not guarantee a
news source any degree of
confidentiality, how could the

press assure a free flow of
information to the public?
Now it seemed that a reporter
with knowledge of potentially
illegal activities was as
vulnerable as those committing
the alleged crime.

With the beginning of the
93rd Congress approximately
two dozen bills protecting
newsmen were introduced. The
scope of the bills ranged
between full immunity from
government investigation to
qualified exemption. Some
covered only federal
proceedings. Others
encompassed state
investigations.

Finally in February Ervin
reconvened his subcommittee
to examine the problem in
the hopes of drawing a single
bill which incorporates the
better points of those already
introduced.

In his opening remarks the
Senator delineated the
investigation's purpose:
"Specifically we will consider
the question of whether the
government should be
permitted to compel the press
to reveal the identity of
confidential sources of
information or the content of
unpublished information."

* * *

Last Thursday Ervin
introduced his bill onto the
Senate floor: "This bill
represents my third attempt at
drafting legislation which will
accomodate both the interest
of society in law enforcement
and the interest in preserving a
free flow of information to the
public."

The bill, backed by men
such as William Fulbright
(D - Ark.), Mike Mansfield,
(D – Mont.), and William
Proxmire (D-Wis.), culminates
a four week long hearing
during which people testified
passionately for and against the
need for such a bill, and over
what form it should take.

Most felt that to qualify the
First Amendment in any way
was a grave mistake, but
because of the existing
circumstances a law
guaranteeing rights under the
amendment was essential

CBS's Stanton, who at the
first hearing felt no legislation
was necessary, regretted, "that
since then there have been
repeated erosion of both the
purpose and spirit of the First
Amendment rights," and that
"no one...can view these
invasions of its freedom with
anything but the gravest
alarm."

Newsman's Privilege Expressed

He expressed an opinion
held by most of those
testifying: "...a newsman's
privilege is intended to serve a
central First Amendment
interest –the dissemination of
news and information-which,
absent the privilege, would
often be unavailable."

The bill provides protection
for a newsman's sources and
for his unpublished materials.
But a reporter must give
assurance to the source that his
identity would not be
disclosed. As proposed, all a
reporter would have to do is
say, "The law will protect
against me having to disclose
your name. But I cannot hide
your identity if you are
committing a crime."

'Minimum' Standard

The bill applies to both
state and federal proceedings.
Ervin views it as only a
"minimum standard" upon
which states may add other
statutes.

In introducing the bill he
stated that "the detriment to
society is potentially
devastating" if confidential
sources are allowed to "dry
up".

Given the magnitude of the
issue and the antagonistic
attitude of Congress toward
the President the bill has a very
high likelihood of passing.
Whether the President will veto
it and whether Congress will
override him is still another
question.

* * *

The antagonism between
the Federal Communications
Commission (FCC) and the
television networks has
expanded the already sharp
conflict between the Nixon
administration and the media
to new horizons. CBS has
received the greatest
condemnation for its campaign
coverage of the Watergate
affair and the controversial
Soviet-American wheat deal.
ABC and NBC are only a little
better off in the
administration's eyes. Of all
the news commentators only
ABC's Howard K. Smith is
accepted by the
administration.

The FCC is apparently so
displeased with the networks
that last year it ordered the
networks to "give back" a half
hour of prime time to local
stations by starting prime time
telecasting a half hour later.
The "New York bias" would
supposedly be offset by other
programming for the mostly
conservative local stations.

But NBC's Peter Hackes
comments, "And what do the
local stations do with the extra
half hour? 'I Love Lucy'
reruns. They do nothing. They
were supposed to 'do their own
thing' and they didn't."

Administration Strikes Balance

Last December the
administration went even
farther in striking what it terms
a balance between the
networks and local stations.
Clay Whitehead, director of the
White House Office of
Telecommunications, proposed
legislation which would grant
local stations a five-year license
instead of the present three.
But, in turn, the $89 network
affiliates would be totally
responsible for all they
broadcast, whether the
material originates in New
York or not.

At the end of each five-year
period a license's renewal
would depend on "the degree
to which the station has been
responsive to the needs and
interests of the communities it
serves." The FCC would
reserve the right to judge the
station's "responsiveness"
without any standards or
categories applicable to all
stations.

Gives More Freedom

"It's patently not a
repressive bill, Whitehead
emphasizes. "It's a bill giving
more freedom to the
broadcasting industry and less
opportunity to the government
to use legal licensing powers to
implement what it thinks
broadcasting ought to do."
Despite his repeated claims,
members of the industry object
to administration's 'carrot and
stick' approach to licensing
procedures.

Even before Congress has
decided one way or the other
on the bill, local stations are
falling in line behind the White
House proposal. A week ago
CBS planned to air a drama
about a returning Vietnam
POW. 69 affiliate stations
refused to have anything to do
with it. They feared it might
offend those emotionally
caught up in the return of the
prisoners.

While individual stations
have always been responsible

for what they air, the FCC's
recent intimidation has forced
many to cancel anything that
may be controversial, or just
upset the administration.

Last January television
station WJXT of Jacksonville,
Fla. ran into difficulty when it
applied for license renewal.
Owned by The Washington
Post, the station had to fight
off challenges of three other
license applicants.

Observers noted quite
readily that WJXT had
uncovered Supreme Court
nominee G. Harrold Carswell's
segregation endorsement in
1948, which ultimately lead to
his rejection by the Senate.
One of the three license
challenges was directed by
George Champion Jr. Finance
chairman of Nixon's Florida
election campaign. However,
the White House denied that
anyone in the administration
had prompted the challenge.

Public Television has also
been vulnerable to the
administration's media
campaign. Less than a week
ago the Corporation for Public
Broadcasting (CPB) announced
cancellation of several public
affairs programs due to lack of
funding. Dropped were "Bill
Moyer's Journal," "Washington
Week in Review," and William
F. Buckley's "Firing Line,"

Currently funding a third of
all public television
programming, the CPB is
working with a reduced budget
of $35 million. While it is
asking Congress for $60 million
for fiscal 1972 and $80 million
for fiscal 1974, Nixon has
budgeted only $45 million for
the upcoming year.

Non-controversial programs
such as "Sesame Street," "The
Electric Company," and "The
Advocates" will remain on the
air.

Corporation Problems Explained

In a series of speeches
delivered at the University of
California last month, John W.
Macy Jr., former CPB president,
explained some problems the
corporation had run into.
When Congress and President
Johnson had first acted on the
program in 1967, long range
financing was needed to shield
the new broadcast media from
future tampering
through annual
appropriations. This feature of
the commission's enactment
bill had to be dropped however
to ensure Congressional
passage.

At the time of its
conception, much debate
focused on the need for
adequate insulation from
potential interference from its
sponsor. It was hoped that
proper insulation could be
achieved, not only through
long term funding, but also by
creating a governing board
made up of non-political
business leaders with varied
backgrounds.

Early Warning Of Trouble

An early warning of
impending trouble came in
September 1970, however,
when FCC chairman Dean
Birch warned that "Congress
seems to call upon public
broadcasting to be fairer than
fair."

But as Macy points out, the
threat of interference was
carried out by the executive
branch, not Congress.
"Objections to programs were

infrequent from Capitol, Hill
until the administration
opened its attack. While
deploring the centralization of
control in the CPB,
Administration representatives
applied pressure behind the
scenes to exercise more control
over video journalism."

Pressures grew into open
demands late last year after
Nixon vetoed the CPB
authorization bill and
appointed six additional CPB
board members. The shield
against government tampering
had been penetrated.

"The possibility of a
government news network is
too high a price to pay for
federal support," warns Macy.
"Freedom must be maintained