A Right to Rummage?

Campus sit-ins were nothing new in 1971 when demonstrators seized part of the Stanford University Hospital, but student editors of the Stanford Daily (circ. 15,000) covered the event anyway. A wise move. Violence broke out, and nine policemen were injured. Three days later the police, armed with a search warrant, barged into the Daily's offices looking for photographs that might help identify their assailants. They found nothing of use, and the Daily filed suit. Eventually, two lower courts found that the paper's constitutional rights had been violated, and the police were ordered to pay $47,000 in attorneys' fees.

But last week, in a decision that startled editors across the nation, the U.S. Supreme Court reversed those rulings. In a 5-to-3 decision, the high bench concluded that police seeking evidence do indeed have the right to push unannounced into a newsroom--or any other place--as long as a judge has issued a search warrant, even if the occupant is not suspected of involvement in a crime. The majority rejected the contentions that police should first seek a subpoena, which can be contested in court, and that freedom of the press under the First Amendment gives newsrooms much more protection against unreasonable searches and seizures than is granted, say, to banks or doctors' offices or private residences, under the Fourth Amendment. Writing for the majority, Justice Byron White concluded: "Valid warrants may be issued to search any property ... at which there is probable cause to believe that fruits, instrumentalities or evidence of a crime will be found."

The Stanford ruling came only weeks after Chief Justice Warren Burger declared, in an opinion in another case, that journalists have no greater right to free speech than other people do. Though the justices have a mixed record on press-freedom issues, last week's decision was seen by many journalists as unmistakable evidence of court hostility to the press. Los Angeles Times Editor William Thomas blasted the decision as "incredible and terrible." ABC News Commentator Howard K. Smith called it the "most dangerous ruling the court has made in memory." Washington Star Executive Editor Sidney Epstein was afraid the court had removed an essential press "safeguard," while the Washington Post editorialized that police had been given "the right to rummage" in journalists' files.

What troubles newsmen is that, in practice, police can often find a judge willing to issue a search warrant, with slight justification. And search warrants do not prevent investigators from poring over all sorts of things while looking for the specific evidence they are seeking. Journalists are afraid this could have a chilling effect on sources, who might choose to remain silent for fear that their names would be found on a stray scrap of paper during a search. Edward W. Barrett, publisher of the Columbia Journalism Review, envisions a distressing scenario: "A newspaper in Blankville, Tenn., starts an expose of police corruption, and at 11 o'clock some night, police come in with a warrant given by a docile judge. They get to the reporter's notebooks and find out who the informant is within the police department. They fire him, and this inhibits other informants."

In the New York Times, Columnist James Reston asserted that had the ruling been in effect a few years ago, it could have prevented publication of the Pentagon papers by the Times and the pursuit of Watergate by the Washington Post. In the case of the Pentagon papers, he says, federal investigators could have gone right into the New York hotel room where the Times staffers were preparing the classified documents for publication and seized them, presumably as evidence of a theft. As for Watergate, Reston contends that the ruling would probably have enabled agents of the Nixon Administration, conceivably pursuing evidence of the breakin, to march into the Post's offices "in a position to intimidate everybody in command." Whether such a move would have stopped pursuit of the matter is doubtful, but Reston has a point about how a Deep Throat might be intimidated: "If the police can demand access to newspaper files, under court orders which the Government can easily demand, then anybody who differs with the Government will hesitate to tell the truth."

Journalists have a tendency to cry wolf whenever the courts seem to them to be trespassing on the sanctuary of press freedom; the impact of such decisions is sometimes milder than expected. The Supreme Court ruled in 1972, for instance, that journalists who observe a crime have no absolute right to protect confidential sources, but judges have generally been reluctant to send uncooperative reporters to jail. In fact, after last week's decision, Deputy Attorney General Benjamin Civiletti said that the Justice Department would draw up procedures limiting federal searches of newsrooms and would seek subpoenas before search warrants. He could not guarantee, however, that local judges and police would show similar restraint.

Stanford Law Professor John Kaplan suspects that they might. "Most judges have to think about being re-elected," he said, "and they do recognize the crucial role of the local press in that process." On the other hand, there have been at least ten newsroom invasions by police since the Stanford incident. "If police come to view newsrooms as places where they can routinely get information, this decision will have more of a chilling effect than any previous case," says Floyd Abrams, a noted constitutional lawyer who helped win the Pentagon papers case for the Times in 1971. "Then it will be a different kind of country from the one the First Amendment was designed to preserve."

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