Farber Finis

Farcer Finis

Supreme silence on subpoenas

It is said that hard cases make bad law. But in the hard case of New York Times Reporter Myron Farber, the U.S. Supreme Court last week decided simply to make no law at all. The court refused, without comment, to review a clash between the rights of fair trial and free press that sent Farber to jail for 40 days and cost the Times $285,000 in fines and over $200,000 in legal fees.

Farber, whose reporting helped lead to the trial of Dr. Mario Jascalevich for the murders of three patients at a small New Jersey hospital, was jailed for contempt of court after refusing to turn over his notes to the trial judge. Farber was freed last month just before the jury found Jascalevich "not guilty," but the New Jersey Supreme Court had upheld the reporter's contempt conviction, along with the fines levied against the Times for refusing to surrender its own documents on the case.

The high court's decision not to review that ruling does not affect similar cases in other states, but it leaves reporters everywhere guessing about the risk of fighting subpoenas. In Branzburg vs. Hayes (1972), the leading pronouncement on the subject, the Justices ruled 5 to 4 that reporters could not refuse to testify before a grand jury. The court did suggest, however, that states could enact "shield" laws to protect a reporter's sources and notes. New Jersey and 25 other states have them. In Farber's case, the New Jersey Supreme Court decided that the shield law "must yield," because it came into conflict with a defendant's Sixth Amendment right to a fair trial.

Times executives have complained that the New Jersey courts never held a hearing to show that the defendant needed Farber's notes. "I think this is a new legal gimmick," said Times Executive Editor Abe Rosenthal last week. "You try the press. You turn attention away. By the time this case was over nobody remembered what it was about; everybody was talking about Farber."

From a journalist's point of view, it may be just as well that the court chose to duck the Farber case, given the cold shoulder that the Justices have turned toward press claims of special privilege in recent decisions. "When journalists rely on the First Amendment in these cases, they'd better face the fact they're not going to get much help from the Supreme Court," says Columbia Law Professor Benno Schmidt. One reporter who agrees is Farber, who is finishing a book on the case. Says he: "I wasn't surprised. I became accustomed to hearing bad things from the courts."

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