Protecting the Privilege  | American Journalism Review
From AJR,   April 1998

Protecting the Privilege   

By Florence George Graves
Florence George Graves, a resident scholar at Brandeis University, is the founding editor of Common Cause Magazine and one of the reporters who broke the Packwood story for the Washington Post. Her research for this story was supported in part by the Fund for Investigative Journalism. Amanda Elk, Bridget Gutierrez and Kathy Killeen provided research assistance.      

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I T'S NOT SURPRISING THAT THE FINGERPRINTS of Ben Bradlee, the famed Washington Post editor, are on the 1970 guidelines the Justice Department must adhere to before subpoenaing journalists or their records.
Issued by Attorney General John Mitchell, the guidelines were an attempt to pacify outraged journalists, some of whom were threatening to go to jail rather than comply with a rash of federal government subpoenas for their notes, photographs and outtakes.
It was a time of tremendous turmoil and social upheaval. Students for a Democratic Society was fomenting revolt on campuses. The revolutionary Black Panther Party was asserting ``black power." The radical Weathermen were agitating for political change. These were inflammatory times. Journalists were capturing the moments; critics said they were fanning the flames.
Bradlee remembers when Mitchell subpoenaed the Post to get all of the photographs it had taken of looters during urban riots. ``We huffed and puffed and conferred and gave them beautiful enlargements of the pictures we did run," he recalls. But he refused to give the Justice Department any of the unpublished photographs.
Finally, Bradlee says, he and other Washington editors confronted Mitchell about the persistent subpoenaing of journalists. ``We said, `You can't do that!' " He continues, ``We were sort of enlightening him--or trying to--about the problems it presented us in our God-given duty to report the news and take photographs." The editors told Mitchell that his subpoenas of photographs from the riots ``threatened the very lives" of the photographers.
``You can see if we got going on this, we could make it sound pretty good," says Bradlee, warming to the topic. But there was genuine fear that if protesters began to think the reporters and photographers were agents of the police, their lives would be in serious danger, he says. ``We couldn't stand for that."
Former NBC general counsel Cory Dunham remembers when network chiefs confronted Mitchell after the federal government issued 40 subpoenas in two weeks for TV footage of dissidents. The outrage created by the plethora of subpoenas to the news media led to the guidelines.
Under the guidelines, the attorney general must approve all subpoenas to journalists. The Justice Department is required to abide by a number of provisions, including first trying to obtain the information from ``alternative sources." In addition, the guidelines say subpoenas should generally be limited to the verification of published information.
Are there any important stories that might not have been published if the guidelines didn't exist? The Pentagon Papers, for one, says Jack Landau, who was Mitchell's press secretary and wrote the guidelines. And then there's Watergate, he adds. It's impossible to know how Watergate would have played out if the guidelines had not been in place. But there's a good chance that the Nixon White House would have felt even more entitled to use the judicial power of the government to try to contain the story.
But even without the guidelines, subpoenas might not have been effective in obtaining Watergate material. The paper has never given reporters' notes to the government, says Bradlee, now the Post's vice president at large. ``We wouldn't give them over under any conditions--not in a Minnesota minute."
What about the 1972 Supreme Court decision that New York Times reporter Earl Caldwell had to turn over interviews with the Black Panthers? ``There is a privilege whether the Supreme Court says so or not," says Bradlee, adding that this is particularly true in the case of notes that reveal confidential sources. ``If you talk to somebody and they will talk to you on the grounds of confidentiality," Bradlee says, ``they can't break that."

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