Piercing a Newsman's "Shield"

In a quiet hospital in suburban New Jersey, 13 patients die mysteriously during 1965 and 1966. Ten years later, a reporter for the New York Times, M.A. (for Myron Abba) Farber, reveals that mostly empty vials of a powerful and potentially lethal drug called curare were found in the locker of a certain "Doctor X." The state begins to investigate. What some experts believe to be traces of curare are found in exhumed bodies, and a grand jury indicts the man Farber, in his stories, had carefully called only Doctor X--Surgeon Mario Jascalevich--for allegedly murdering five patients.

From the start, the case had the ingredients of a Hollywood whodunit. But when the defense, claiming a frame-up, demanded to see the reporter's notes, the Doctor X trial was transformed into a clash of constitutional principles as well. Citing the First Amendment and a New Jersey "shield law" giving a reporter the privilege of refusing to disclose confidential sources, Farber and the Times refused to turn over anything. The result: a head-on collision between the First and Sixth Amendments, between the constitutional claims of free press and fair trial.

Last week the Times and its reporter seemed to be the chief victims of the collision. With Jascalevich's trial in its fifth month, Judge William J. Arnold demanded Farber's notes for private inspection-- apparently to determine whether the shield law applied. When Farber refused, both he and the Times were cited for contempt.

"I am not a fanatic or an absolutist, declared Farber during his contempt trial before Judge Theodore Trautwein. But, he added, "I believe the First Amendment means what it says about freedom of the press." Editorialized the Times: "A court, no matter how benign, is to us an arm of the state. A promise to protect a source is a promise to protect it against any third party."

Such arguments seemed to cut little ice with Trautwein. "The case is being tried; a man is charged with murder . . . You still say Myron Farber should be the judge," said Trautwein indignantly. All he was asking, the judge continued, was "to let us take a little peek." So impatient was Trautwein to punish Farber, 40, and the Times that he began handing down sentences before pronouncing them guilty. Realizing his mistake, Trautwein declared sheepishly, "I'm putting the cart before the horse." Then he slapped both the paper and the reporter with stiff coercive civil and punitive criminal contempt sentences: a fine of $5,000 a day for the Times and jail for Farber until the notes are coughed up, plus a $100,000 fine for the Times and another six months in jail for Farber as well as fines against him totaling $2,000.

Armed with handcuffs, a bailiff approached Farber. "No, no cuffs," interposed a county sheriff, but Farber was still led off to jail. More than seven hours later, the New Jersey Supreme Court freed him--temporarily--to seek a further stay from the U.S. Supreme Court. Last Friday Associate Justice Byron R. White extended the stay until Tuesday to give Jascalevich's lawyers time to argue why Farber should go back to jail. As a result of this week's hearing, the case could go back to the New Jersey courts--with Farber in or out of jail--or to the high court when it reconvenes in October.

The constitutional issue posed is undeniably difficult: Should a reporter be protected from disclosing evidence that may show a murder defendant to be innocent? Farber has repeatedly insisted that any information he has uncovered can be uncovered by others as well. Balanced against the usefulness of Farber's notes is a grave risk that the press would be damaged in its First Amendment function of informing the public. Noted a Los Angeles Times editorial: "Without the ability to protect his sources, the reporter could not have produced the information that caused the state to renew its inquiry, yet the state, through its agent, the judge, is seeking to destroy that very process."

Journalists' claims that the First Amendment protects their sources have not got very far with state courts, which in criminal cases tend to favor the right of the accused to a fair trial. Since 1970, some 40 journalists have been held in contempt for refusing to divulge sources, and 14 have been jailed for anywhere from a few hours to six months. In Farber's case, though, he can also point to New Jersey's shield law. Says Columbia Law Professor Benno Schmidt: "If it's interpreted according to its plain meaning, I don't see why it doesn't give the reporter a privilege to keep his sources confidential." But Schmidt added that some state courts have found ways around so-called "absolute" shield laws.

Last month, when the Times first appealed to the high court for a stay, White refused it, declaring: "There is no present authority in this court that a newsman need not produce documents material to the prosecution or defense of a criminal." White was also the author of the 1972 majority opinion in Branzburg vs. Hayes, in which the court held that a reporter who had witnessed a crime could not refuse to testify before a grand jury. Says Columbia's Schmidt: "Branzburg doesn't foreclose the Times from winning, but it's not grounds for optimism."

If the Supreme Court does eventually hear Farber's case, the result may turn on a fundamental distinction. The court has been very protective of the press's right to publish information. But under Chief Justice Warren Burger, the court has given journalists very little protection in acquiring that information. qed

This file is automatically generated by a robot program, so viewer discretion is required.