When the Law and the Press Collide

By Thomas Griffith

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.

James Goodale, executive vice president of the Times for legal matters, points out that Nixon got a hearing before turning over his papers. And though U.S. Attorney Gen eral Griffin Bell was recently cited for contempt for protecting FBI sources, nobody put him in jail, like Farber, while the appeals went on. Yet a federal judge in New Jersey, refusing to release Farber and calling him "evil," ruled so intemperately that he didn't even get his facts straight. The Farber case seems to have this effect. He had "discovered" that Farber had a $75,000 advance for a book (though this fact had been mentioned in court records and in the Times); assumed that Farber had been willing to show his publisher materials that he wouldn't show the judge (he hadn't); and assumed Farber needed a conviction in the murder case to make the book a success (Farber had turned down a movie offer because it seemed premised on a guilty verdict). Farber "has it in his power, perhaps," said Federal Judge Frederick Lacey, to get the doctor acquitted; yet if he does, "the book goes down the drain. . . This is a sorry spectacle of a reporter who purported to stand on his reporter's privilege when in fact he was standing on an altar of greed."

Strong stuff from a federal judge, and some journalistic defenders immediately got nervous. "Farber ought to throw in his hand ... [There is] a ring around the collar on his white robes of virtue. It won't wash," wrote Conservative Columnist James J. Kilpatrick. "The dollar sign has risen to taint [Farber's] martyrdom," wrote Charles B. Seib, ombudsman of the Washington Post--the paper whose Watergate reporters, Woodward and Bernstein, have made more money from investigative reporting converted into books than any other journalists in history. FARBER CASE DULLS THE EDGE OF THE PRESS'S SILVER SWORD ran the headline in the Post over a column by a Pulitzer-prizewinning reporter, Haynes Johnson. Now it was Rosenthal's turn to get testy. "I wrote Johnson that his piece was the 'nadir of journalism for 30 years'--accepting what a judge had to say, never checking anybody before he began to vilify." Rosenthal thinks the whole Jersey judicial establishment is after what one judge called "the imperialistic press." But says he, "if this goes through, every defense lawyer is going to say, 'If you've got a weak case, try the press.' "

Early on, Anthony Lewis, a New York Times columnist knowledgeable in the law, wrote that if Jersey higher courts are "wise enough to rescue the trial judge from his mistake" and narrow the material sought, "I think the reporter and the paper will face a compelling obligation to comply." In the emotional atmosphere around the Times newsroom, this was courageous counsel; it also appears to be what the Times is prepared to do.

Several years ago a prosecutor wanted some photographs the Times had not run. A cop had been killed in a Harlem mosque; the police had been lax in photographing the scene. Would the Times supply its pictures? No. The case went to court, the Times lost--and then, without appealing, handed over the pictures. "That was a rare circumstance where the press had the key material," says Goodale now. In the Farber case, once there is a hearing and a proper narrowing of the evidence sought, that will be the time to take after the Times if it then refuses to comply. Right now arrogance seems a better word for Jersey justice.

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