Chapter Six—
Access to Sources and Information

Highest in the pantheon of press heroes is James Madison, father of the Constitution and the press's favorite amendment. Fittingly enough, he also wrote one of the most powerful statements on the importance of a free press, one that has been quoted with fervor and regularity over the past two decades: "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."^[1]

The press can bask in the glory Madison reflected, albeit largely by failing to know, and therefore not needing to forget, that Madison was praising public education, specifically a liberal appropriation by the Kentucky legislature. Original context aside, however, Madison's apt merging of an informed citizenry and republican government speaks powerfully to the needs of both public and press. From the Radical English Whigs to modern Supreme Court justices, the essential relationship between the press, an informed citizenry, and the needs of self-government has been clear—for if the citizens are kept in the dark, they cannot make the essential choices postulated by democratic government, and as the Supreme Court recognized in the bicentennial decision of Buckley v. Valeo , "the people are sovereign."^[2]

Both Near and New York Times were designed to facilitate the informed citizen's full participation in the country's governance.

Holding that truth as a defense was insufficient because of the potential chill on the "citizen-critic of government," New York Times resonated with Alexander Meiklejohn's view that in a democracy the citizens, rather than their elected agents, are the essential public officials. Near , of course, looked to ensure that government could not prohibit the publication of statements about its behavior, regardless of their truth.

Discussion of public affairs must be, as New York Times held, "uninhibited, robust and wide-open." But that is not enough. It must also be informed. Meiklejohn wrote that "when a free man is voting it is not enough that the truth is known by someone else, by some scholar or administrator or legislator. The voters must have it, all of them. The primary purpose of the First Amendment is, then, that all the citizens shall, so far as possible, understand the issues which bear upon our common life." In our modern society information is power, and the government has, for both proper and improper reasons, attempted to protect information, releasing it only when those in power deem its release to be in the national interest. A spectacular illustration occurred in the summer of 1989, when the B-2 Stealth Bomber went from never-seen and top secret to all over the news and congressional committees as the Bush administration attempted to persuade a skeptical Congress and public that any airplane could be worth over half a billion dollars a copy.^[3]

In this context the willingness of others to supplement the official information—"handouts" is the pejorative—is essential. Obviously, Robert Woodward's "Deep Throat" and Watergate come to mind. But every Washington reporter attempts to keep a stable of happy sources, and this results in some blockbuster stories. Thus Seymour Hersh of the New York Times described in 1974 a large-scale CIA operation directed against the domestic antiwar movement, a disclosure resulting in major congressional hearings and restructuring of the agency. Two reporters for the Chicago SunTimes broke the story of the Abrams M-1 battle tank fiasco: it could not go into most combat situations without an accompanying bulldozer to dig it in and out of protective ground cover. George Wilson, a decade after his brilliant courtroom display countering Admiral Noel Gayler's affidavit in the DC Circuit Court of Appeals, disclosed a $ 750-billion mismatch between the cost of the Reagan

rearmament program and the amount the administration had yet requested from Congress. Rowland Evans and Robert Novak reported that American intelligence had discovered an immense radar system in Siberia that flagrantly violated treaty obligations to the United States. (Although many liberals thought this story nothing but right-wing propaganda, the Gorbachev administration actually confirmed the point.) And Woodward, in yet another coup, revealed that the Reagan administration's secret disinformation campaign designed to destabilize Muammar el-Qaddafi's regime was in fact deceiving the American public and our nation's allies. Without people on the inside willing to risk loss of their jobs in order to disclose such folly, none of these important disclosures might have occurred.^[4]

Meiklejohn, and more recently Thomas Emerson, with their emphasis on the public as sovereign, properly focus on the need for the citizen to have relevant information—such as Hersh, Wilson, Woodward, Evans and Novak, and others are constantly providing through their unauthorized access to information the government would rather keep secret. This, in turn, has powerful echoes at the Supreme Court, where Justices Stevens and Powell have stated that "without some protection for the acquisition of information about the operation of public institutions the process of self-governance contemplated by the Framers would be stripped of its substance." The rhetoric is powerful; for better or worse, however, it far outstrips reality.^[5]

The rhetoric speaks to individual decision making. But the reality, both in fact and by the express language of various provisions of the Constitution, is that decision making in our democracy is placed in the hands of our elected representatives and their appointees. There is a powerful claim that the elected representatives need all essential information before they can decide intelligently; but rhetoric aside, that claim attenuates considerably, although it does not vanish, when it is applied to the voters. Furthermore, the problem is compounded when the elected representatives, who have the necessary information, come to the conclusion that the information, if disseminated, would be harmful to the nation. Why should a lone unelected citizen who happens to have access to the information be allowed to impose a contrary decision?

Near answered the question about whether a newspaper with

information could publish. It assumed, as do all true prior-restraint cases, that punishment might appropriately follow. In this chapter, that assumption will be further questioned. In addition, since information does not simply grow and wait to be harvested, we will look at two essential means of gathering it: access to places and cultivation of people.

I

Although presidents have often perceived the fact as an unfortunate failure, the United States, unlike Britain, has no Official Secrets Act. Publication of government information, even if properly classified, is not an offense per se under the criminal laws. As we saw in Chapter 2, President Wilson sought such a provision during World War I, but Congress refused to adopt it. Only with the Atomic Energy Act of 1954 (which Knoll and Morland were threatened with) and the Intelligence Identities Protection Act of 1982 has Congress adopted statutes specifically criminalizing mere publication of specified information. More general laws were proposed late in the Eisenhower administration, again by Senator Stennis in 1962, and most recently in the mid-1970s overhaul of the Criminal Code; but all failed. As former CIA Director William Colby testified, Congress "has drawn a line between espionage for a foreign power and simple disclosure of our foreign policy and defense secrets, and decided that the latter problems are an acceptable cost of the kind of society we prefer."^[6]

Colby's observation correctly treads the line of constitutional power. Few would argue, and no court would likely agree, that there is a First Amendment right to disclose secret information. Yet disclosure—leaks—is a way of life in the nation's capital. There seems general agreement that without leaks it would be impossible to understand government, especially diplomacy and national security. Congress has the power to prohibit disclosure, but except in a few specified categories it has refrained from exercising that power.

While the previous two paragraphs are correct as far as they go, they unfortunately do not go far enough in describing the Criminal Code. Begin with the realization that theft of government property—conversion, in legalese—is obviously a crime. Indeed, the

specific section of the Code, section 641, makes it a crime to take "anything of value." Might that not include photocopying a document? And of course, however nice leakers are, we take a rather dimmer view of those leaking to a foreign power; we label their actions spying, which is prohibited by section 794 of the Espionage Act. Its companion section, 793, goes considerably further, prohibiting disclosure to any unauthorized person. This might at first glance appear to be an Official Secrets Act, but section 794 is aimed at the leaker, not those who publish. Finally, we should not forget regulations, like those of the CIA, which preclude those with access from disclosing information without permission.^[7]

These statutes and regulations, either separately or, more likely, in combination, might prove effective, not in stopping all leaks, but in deterring some. Furthermore, they at least offer the government an additional hunting license, complete with an opportunity to make an example of the unlucky quarry. In upholding the CIA secrecy contract, the Supreme Court stripped Snepp of all his profits from his book. If he and the thousands of others who have signed such contracts wish to leak, it will likely be "for free"—which means to newspapers rather than book publishers.

At the instant the leakers move from books to newspapers, they meet Morison, the defense hawk who was convicted of espionage and theft. Morison, of course, was no spy, and therefore section 794 was not applicable. But he did provide copies of a defense briefing and a satellite photo to Jane's Defence Weekly . His conviction was affirmed under both section 793, because whoever received the copies was necessarily unauthorized to do so by the US government, and section 641, because what he did was technically—and more important, legally—conversion.

As it has steadfastly done in this area, the Supreme Court ducked and refused to review Morison's case. Had it decided to review the case, it could have interpreted the statutes as not reaching leakers; or it could have, and my guess is would have, affirmed. In either event, the Court would not have created a First Amendment immunity from appropriately drafted legislation. It would only have dealt with the question of whether Congress had properly authorized punishment of the action at issue. In Haig v. Agee , with emphasis on the importance of national security, the Court had sustained stripping an ex-CIA agent of his passport because of his

consistent efforts to disclose the identities of agents in the field. The result and reasoning of Haig are broad enough to sustain the subsequently adopted Intelligence Identities Protection Act.^[8]

Reality prevents the conclusion that the leakers have a First Amendment right to disregard legislative determinations of when confidentiality is necessary—not to mention the betrayal of the trust whereby they obtained access to classified information. Leakers cannot be laws unto themselves. Society has rights, too, and one of those must be the right to demand faithfulness in those it trusts. In so doing it provides important incentives for those in government to respect secrecy, at least when their superiors wish the information kept private.

When secret information reaches the press, the line changes radically. As we have seen, Near and other cases virtually guarantee that the press may publish without fear of an injunction. More relevant, however, is what protections the First Amendment provides after the press has published. We know that Daniel Ellsberg was indicted for passing the Pentagon Papers to the press, and we know that the newspapers, despite some contrary bluster, were not indicted for publishing them. We know that Philip Agee lost his passport after he persistently identified CIA agents in the field (and today he would be subject to criminal sanctions); we do not know what will happen if a newspaper crosses that line. Maybe, in Laurence Tribe's apt phrase, there is a "rough 'law of the jungle'" at work, whereby the leaker is, if necessary, fed to the animals so that the newspaper will survive. It is vastly easier to understand that publishing information in your possession is an exercise of freedom of the press than that either pilfering documents or disclosing confidences in breach of trust is an exercise of freedom of speech.^[9]

The easy constitutional rule would be that the press may publish all truthful information it noncoercively acquires, subject only to the laws of treason. But the Supreme Court, like Richard Nixon, has concluded that to do the "easy" thing would be "wrong." Despite upholding the press in every single "privacy" case and in other, noncopyright, contexts where it has published truthful information noncoercively obtained from government sources, the Court has avoided sweeping rules and has always assumed that somewhere down the line may lie a situation where the press ought not publish. Indeed, one might have thought the Progressive was

such a case; but as with the publishers of the Pentagon Papers, nothing happened to either Howard Morland or Erwin Knoll.^[10]

Three cases, Landmark Communications v. Virginia, Florida Star v. B.J.F ., and Seattle Times v. Rhinehart , are illustrative. In Landmark Communications and Florida Star , the newspaper published confidential information: the name of a judge involved in disciplinary proceedings in the former; the name of a rape victim (accidentally and against the newspaper's own policies) in the latter. Although the issue was the same in each case, the Court's analysis was different. In Landmark Communications , a criminal case, the Court held that Virginia failed to prove a clear and present danger from disclosure—and since disclosure would necessarily harm the judge, the implication of the holding is either that the harm was insufficient or that it simply could not be prevented by a sanction on the press. In Florida Star , a civil privacy case, the Court relied on its previous holdings regarding disclosure of the names of victims and juvenile offenders to invalidate the $ 100,000 in damages awarded the victim, because the paper had lawfully obtained the information through government disclosure. The decision recognized, as had Landmark Communications , that the state is in the best position to protect against disclosure through "careful internal procedures."^[11]

Florida Star declined to rule that publication is protected so long as the material is truthful. The Court was uneasy about future cases—alluding, as always, to Near 's national security problem as well as to libel of private figures. Neither example seems as supportive of its holding as Rhinehart , where, as noted in the previous chapter, the Court held that information acquired through discovery during litigation cannot be published unless the information is also disclosed in open court. Rhinehart's balance demonstrates that there are some circumstances where it is too unfair to allow the press to publish (without sanction) information that it has. And one could extrapolate from Rhinehart that if the press broke into a building and pillaged files—or planted bugs—and later published, then the publication could be taken as insult upon injury.

But these examples of coercive acquisition of information are a far cry from the issue, ducked ever since the Pentagon Papers Cases , of the press publishing information which was unlawfully taken by a third party (which at the federal level, because of section 641,

may be just about everything). Nevertheless, looking at results rather than the reasons offered for them, the rough law of the jungle works fairly well; it precludes sanctions where the press did not coercively acquire the information, while leaving the potential deterrent of criminal penalties hanging as a very last resort. Justice Stewart, if not the Court, has suggested this approach; and past practice indicates that it ought to take a blockbuster disclosure—maybe "Ivy Bells" would have been it had Bradlee not caved—before sanctions against the press rather than against the actual source could be constitutionally permissible. But even then, the better rule would be that the press, but not the leaker, enjoys a First Amendment immunity to tell the public what its government is doing. Surprising as it may seem, my suggested better rule receives legislative support from the Intelligence Identities Protection Act of 1981. This law covers anyone (and therefore the press) who, "with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent"; but it has an important proviso: that disclosure be part of a "pattern of activities intended to identify or expose covert action." The proviso appears to limit the operation of the law to publications such as the Covert Action Information Bulletin , thereby leaving the regular press alone.^[12]

II

Saying the government must prosecute the leaker, not the press, might be a nifty Catch-22. What if the government does not know who the leaker is—and, obviously, someone at the newspaper does. What should the newspaper, or its reporter, do when the government asks "Who did it?"

The immediate response will be: protect the source. Imagine if Woodward had named "Deep Throat," the Watergate source without whom Richard Nixon would have been a two-term president. Had Woodward disclosed at any time, it is inconceivable that Potter Stewart (in Woodward's book, The Brethren ) or William Casey (in Veil ) would have opened for him the two most secretive agencies of government. Obviously, most reporters will never have Woodward's luck; yet all in the capital cultivate sources, and most gov-

ernment officials reciprocate, as they come to understand that cultivating reporters may result in favorable coverage. Leakers typically view the press as a resource, and they leak for all sorts of reasons: glorifying their own importance; discrediting others; obtaining a credit to cash in later; and, most frequently, to influence, either positively or negatively, some policy. As Martin Linsky wonderfully summed it up: "[Although] leaks have a negative connotation, one person's leak is another's profile in courage."^[13]

The reasons are sufficiently diverse so that leaks are an everyday occurrence. Seemingly everyone leaks, although a recent study, whose author thought the figure understated, found that 42 percent of all senior government officials admitted leaking materials to the press. Statistics confirm the intuition that leaking is more prevalent now than it was fifteen years ago, and more prevalent then than fifteen years earlier. For the most part, leaking is without risk, because it is tacitly authorized, widespread, and generally not important enough to result in an investigation. Even if the leak does matter and might get the leaker fired or worse, the confidential relationship between the reporters and their sources allows a leaker to deny being the culprit without fear of contradiction—unless the reporter can be made to talk.^[14]

Even a court order could not get Marie Torre of the old New York Herald-Tribune to reveal her source. She may have been protecting a confidential relationship and providing the public with much-needed information, but the news that CBS executives would not employ Judy Garland because of her drinking problems was definitely not the type of information Meiklejohn thought a democracy needs. The Second Circuit Court of Appeals, in an opinion by visiting Sixth Circuit Judge (and Justice-to-be) Potter Stewart, did not think so either. In Garland's defamation and breach-of-contract suit against CBS, Torre refused to name her source even when the judge ordered her to do so. She was held in contempt of court, served ten days, but remained silent. Torre's article was hardly a matter of national security; and it occurred well before the fruition of the symbiotic relationship between Washington reporter and government official. So, too, did the next few cases, all of which stayed in the state courts. Then in the early 1970s, with the reporter-Washington-source relationship well in place, the issue of

reporter's privilege—the legal right to maintain confidentiality without fear of punishment—came to the Supreme Court.^[15]

It did not come from Neil Sheehan refusing to identify the already known Daniel Ellsberg or from Woodward hiding "Deep Throat's" identity. Indeed, it did not involve Washington, DC, national security, or foreign affairs at all. Instead, the cases involved the Black Panthers and the emerging drug culture. Earl Caldwell, a black reporter for the New York Times , had been transferred to San Francisco because the Panthers were becoming increasingly distrustful of white reporters, at least in part because FBI agents had posed as reporters. "Because the Panthers feel oppressed by established institutions, they will not speak with newspapermen until a relationship of complete trust and confidence has been developed—often slowly and meticulously." Caldwell managed to do that and as a result was able to write informative stories. Paul Pappas of a New Bedford television station had a one-shot relationship with the Black Panthers in their headquarters one night during what was euphemistically called "civil disorders." Pappas was allowed to come to Panther headquarters for an anticipated police raid, which he could photograph and report on as he wished; but he promised not to reveal anything should the raid never materialize—and it didn't.^[16]

In between was the Louisville Courier Journal's Paul Branzburg with his access to the central Kentucky drug scene. Branzburg's beat was the drug culture. Two of his articles, written fourteen months apart, detailed differing aspects. One described the profitable extraction of hashish from marijuana, wherein one of his sources opined he did not know why he was letting Branzburg do the story—"To make the narcs (narcotics detectives) mad, I guess." Correctly, as it turned out. In the other he attempted to provide a "comprehensive survey" of the "drug scene" in Frankfurt. In a twoweek period, he interviewed "several dozen drug users" for the article.^[17]

Caldwell was one of the few people who could provide hard information on the increasingly violent and beleaguered black militants, especially the Panthers. Over two dozen Panthers had been killed in shootouts with police. Yet, unlike the Student Nonviolent Coordinating Committee (Caldwell drew the parallel in one arti-

cle), the Panthers had staying power in the ghetto; probably because, as Caldwell noted, they were from the ghetto and were going to jail one way or another in any event. At a time when Panther leader David Hilliard had stated in a public speech, "We will kill [President] Richard Nixon," Caldwell quoted him as saying the only solution to an oppressive government was "armed struggle." Caldwell's article also noted that in police raids caches of weapons, including high-powered rifles, had been found, because the "Panthers [had] picked up guns."^[18]

All three reporters were called to testify before grand juries about the criminal activities of their sources. Pappas and Branzburg appeared and refused to testify. Caldwell did not even appear, categorically asserting, "If I am forced to appear in secret grand jury proceedings, my appearance alone would be interpreted by the Black Panthers and other dissident groups as a possible disclosure of confidences and trusts and would . . . destroy my effectiveness as a newspaperman." The establishment press, identifying with Caldwell, took his case as their own. Affidavits filed in his behalf and agreeing with his conclusions read like a who's who: Walter Cronkite, Marvin Kalb, J. Anthony Lukas, Dan Rather, Eric Sevareid, Mike Wallace. Whatever differences there might be in the cases, the Court tossed them together (and to the shock and dismay of the press, which had grown accustomed to "the Caldwell case," put them all under the name of Branzburg v. Hayes ) and treated them as indistinguishable, even though Branzburg had clearly witnessed the commission of a crime, whereas Caldwell and Pappas had not.^[19]

Forcing reporters to appear before a grand jury and disclose sources will necessarily deter some newsgathering. Some otherwise willing sources would not talk to a reporter if their identities could subsequently be learned, and some reporters would be unwilling to pledge confidentiality if it meant that they would be forced to choose between their promise and a personalized trip to jail (and as one of my colleagues teaches his students, if either you or your client is going to jail, make sure it is not you). Even the Department of Justice, seeking the information from Caldwell, agreed there would be a chill. But as the discussion of libel demonstrates, a chill by itself is only a starting place. The dispositive questions are how

much of a chill? and how important are other, countervailing values?^[20]

Justice White, for the majority, conceded the chill, but found its scope quite speculative; he appeared unwilling to give it much credence, especially after he granted that there was some constitutional protection for newsgathering and that the case was not about indiscriminate demands for disclosure. Because chills are always speculative, White's hostility to the argument seems out of place. Quite possibly it stemmed from the choice of argument made on behalf of the claim of privilege.

No one argued for an absolute privilege—a right not to disclose under any circumstances. The reason no one made this argument is that it was a sure loser. No rights are that absolute—including even the Fifth Amendment privilege against compulsory self-incrimination and the attorney-client privilege—and therefore to make such an argument would be a sign of unreasonableness. Unfortunately, the reasonable choice—contending for a qualified privilege, which could be overcome under certain (hard to achieve) circumstances—presented a different problem. The empirical basis for the privilege was that sources had to have up-front assurances that the reporter would not disclose their identities. This empirical claim logically leads to an absolute privilege. But the legal contention was that a qualified privilege would do; yet necessarily this would mean that a reporter could not give the guarantees that the empirical claim said a source would need. As the Court responded, "if newsmen's confidential sources are as sensitive as they are claimed to be, the prospect of being unmasked whenever a judge determines the situation justifies it is hardly a satisfactory solution to the problem." In fact, "only an absolute privilege would suffice"; and the press was eschewing that argument. With the empirical premise at war with the legal argument, the claim was in lots of trouble.^[21]

Beyond finding the chill too speculative, the Court emphasized that what was at stake were grand jury investigations of criminal activity. The Court waxed poetic about the nature of grand juries (playing an "important" role in providing "fair and effective law enforcement aimed at providing security for the person and property"), the duty of all citizens (complete with a pre-Watergate footnote including within the term even the president) to give the

grand jury their evidence, and a reminder that it was criminal conduct at issue. "Only where news sources themselves are implicated in crime or possess information relevant to the grand jury's task need they or the reporter be concerned." And if they are involved in criminal conduct, "their desire to escape criminal prosecution, while understandable, is hardly deserving of constitutional protection." Nor was the Court impressed by the idea that the press's duty should be deemed complete by bringing the issue to the attention of the authorities through publication. Embracing the world of action over that of contemplation, it wrote: "We cannot seriously entertain the notion that it is better to write about crime than do something about it."^[22]

The Court ended by noting that "the administration of a constitutional newsman's privilege would present practical and conceptual difficulties of a high order." Who, after all, qualifies as a "newsman"? When should the privilege apply? What should be seen as a good enough reason to force the reporter to disclose? These, the Court opined, are questions better left to the legislature. The press, with its resources, ought to be able to take care of itself there.^[23]

Branzburg is both unusual and transitional. It is unusual because the decision turned not so much on the Court's rejecting the constitutional claim that there was a need for confidentiality as its rejecting the remedy and doubting its own ability to fashion coherent rules in advance. Furthermore, Branzburg was a five-to-four decision, with three dissenters fully accepting the press position and Justice Douglas, in a fit of sheer mindlessness, willing to give the press a privilege so absolute the reporter need not even show up to claim it. And, above all, it was the case that began the press's transformation of Justice Powell into the Sainted Lewis (only a slight exaggeration) by the time he was to be replaced by the mephistophelean Robert Bork. Powell did surprisingly little in his first step toward beatification, writing a simple page-and-a-half concurring opinion "to emphasize what seems to me [as the deciding fifth vote] the limited nature of the Court's holding." He agreed the newsmen were "not without constitutional rights with respect to the gathering of news or in safeguarding their sources." What Powell asserted was that a "case-by-case" approach was the appropriate method of balancing the needs for information against the

constitutional rights of the press. There was nothing inconsistent between Powell's separate opinion and that of White; hard and fast rules could be avoided, but in individual cases, when a source deserved protection, a judge might grant it.^[24]

Branzburg , decided in June 1972, was doubly a transitional case. First, it is a precursor of the move from Rosenbloom to Gertz , toward applying different rules to public figures and to private individuals. Had the grand juries been seeking information from reporters about dealings with public officials, matching the facts of litigation with all-star supporting affidavits asserting that confidentiality helped the press gain information from government officials, the result might have been different. Second, Branzburg radiated a new skepticism about the creation of additional rights and the ability of the judiciary to administer them. Furthermore, the Court's administrative worries were not unrealistic.

Who should be granted the privilege? Tom Wicker, writing for the New York Times ? Surely. Tom Wicker researching and writing a book about the prison riot at Attica? Hmmm. Tom Paine? History demands a yes. Everyone? Has to be no. Why Paul Branzburg and not Ralph Nader (who, after all, has proven an excellent investigator)? What about anyone writing eventually for publication? That is a good line, but what if the publication is entitled the Cosa Nostra Ledger ? All of these questions are answered in some fashion by some administrative schemes that issue press credentials. But however much the Constitution supposedly follows the flag, does it also follow the credentials criteria for admission to presidential news conferences?

For the most part the press has not been concerned with the "who" questions, because those discussing reporter's privilege have always been secure in the knowledge that they would be covered. Because most reporters can instantly identify with the need for a privilege, the press has never reconciled itself to Branzburg and, naturally, has never stepped back to enjoy the irony that it would like to claim for itself a right it fully believed (and believes) should be denied to the president of the United States (because if Richard Nixon had had the complete presidential privilege he asserted, his tapes would never have been turned over to the Grand Jury or Congress). Illustratively, at the end of 1988 a reporter for the Wall Street Journal and a media lawyer wrote a law review article,

detailing the need for a privilege to protect confidential relationships developed inside the Beltway. Yet not once, in an otherwise impressive display of documentation, did they offer an example of the actual need for a privilege in those circumstances. As Caldwell's all-star group of supporters and that law review article demonstrate, it is easy to make a solid claim for the privilege. It is a lot tougher, however, to show that it is needed, even in the key situation; and few reporters have even deigned to discuss how it might work in the world beyond the Beltway.^[25]

Speaking for too many journalists, Theodore H. White wrote that "had the jurisprudence [requiring reporters to disclose sources to criminal defendants because of the latter's Sixth Amendment right of compulsory process] prevailed in 1974, the attorneys of Messrs. Mitchell, Haldeman, and Ehrlichman could have demanded that Woodward and Bernstein give up their notes and so reveal the identity/identities of 'Deep Throat' or go to jail." Although inelegantly put, White's point is that if Branzburg had existed in 1974, then Woodward and Bernstein might have been faced with jail time to protect "Deep Throat." White, whose grasp of history is usually secure, ignores the elementary fact that 1972 occurred two years before 1974. Like others, he apparently cannot remember that Watergate came after Branzburg , and yet the administration (which had both the incentives and propensities to do so) never placed Woodward in a situation of having to choose between some jail time and disclosure. That has always proven to be the case, from Richard Burt's disclosure for the Times that President Carter was about to cancel the neutron bomb (a leak that undid the cancellation) to Leslie Gelb's disclosing, also in the Times , that the United States had contingency plans for deploying nuclear weapons in Canada, Iceland, Bermuda, and Puerto Rico, though it had not informed the host governments of these plans. Washington leaks, from Ellsberg's through Morison's, may be spectacular, but they do not result in reporters being told to disclose their source on pain of punishment.^[26]

The government leak situation properly worries the press. It most directly affects the ability to provide information about what government is doing in a context where the government has the necessary resources to find criminal behavior without comman-

deering a reporter. The First Amendment should protect the press in these circumstances, but there are other foreseeable cases where blanket protection of the press would fail to take account of relevant interests mandating disclosure.

One foreseeable example takes us back to the first case of a claim of privilege, Garland's defamation action. Let us update the case to make it a little more contemporary. Suppose that the press prints a libelous story, assertedly relying on confidential information, which the public-figure plaintiff can prove is false. What is at issue is whether the paper printed the story with reckless disregard as to its falsity. If there is no source and the reporter just made it up, then the plaintiff will prevail. If there is a source, then the identity of the source may well open issues of the source's veracity, as well as issues of how much checking the reporter did. None of these issues can be addressed without knowing who the source is, and it is hardly surprising that judges in these circumstances (wherein the plaintiff has already made a substantial showing that the story is both untrue and defamatory) will conclude that the source must be named. For reasons I expressed in Chapter 4, the New York Times rules have proven inadequate; but as long as the courts are required to work within them, it is irrational to suppose that when a case arises such as I have outlined, reporters will not be forced to disclose.^[27]

Thus far I have not addressed what will happen should the reporter refuse. Typically, as with Marie Torre, it will mean some jail time for contempt. The reporter can choose whether to disclose or go to jail. It is interesting to recall the comment of my colleague that if faced with a choice between you and your client, you'd better make sure it's not you who goes to jail. Reporters, either because of a different professional norm, or because circumstances force them to take their promises more seriously, will often make the nonlawyerly choice and go to jail themselves. As long as they are willing to do so, then sources can have some assurance of protection. The jailed reporter will always be released at the end of a criminal trial. In the case of a refusal to provide grand juries with information, the situation is more complex; but once a reporter demonstrates a determination not to divulge regardless of time spent in jail (which could go six to eighteen months), then im-

prisonment is typically terminated, because its purpose is to create an incentive, not retribution. Jail time is not fun; but it is not forever either.^[28]

The situation is different, however, in libel suits. In such cases, if reporters refuse to name their sources, judges typically respond in the same way they respond to any failure to produce evidence—the jury will be instructed to presume that the evidence would be harmful to the nonproducing party. In these circumstances that means the jury will be told to presume the reporter had no source—and such a presumption is likely to be fatal to the paper's libel defense. This may prove to be another defect in libel litigation, quite similar to Herbert v. Lando , but until the current rules are changed it is all but inevitable. And it is fair: confidential information is often subject to forced disclosure in litigation, and many forced disclosures are more sensitive than the naming of a confidential source. One need only recall Seattle Times v. Rhinehart to note that the press plays a similar game, too, and that in appropriate circumstances protective orders may limit the ways in which disclosure may be used (thereby attempting to preclude retaliation against the source).

Another foreseeable situation is when a reporter may have evidence that would assist a criminal defendant (who is entitled by the Sixth Amendment to compulsory process for obtaining witnesses in his or her favor). In 1966 a number of mysterious deaths occurred in an Oradell, New Jersey, hospital. A decade later, on the basis of a letter stating that the chief surgeon of a hospital had murdered thirty to forty patients, New York Times reporter Myron Farber investigated the deaths and wrote several stories carrying the results of his investigation. An outgrowth of the stories was a murder indictment against Dr. Mario E. Jascalevich, who was charged with poisoning five patients. The defense naturally had a keen interest in Farber's investigation, since without Farber's stories the defendant would not have been facing such unhappy prospects. The trial judge issued a subpoena ordering Farber and the Times to produce Farber's notes and documents for the judge's inspection. When Farber and the Times refused, they were found in contempt, Farber eventually being jailed and the Times required to pay fines totaling $ 285,000.^[29]

Farber's case was complicated by the fact that New Jersey had a

so-called shield law, and the trial judge's order did not conform to the law. The New Jersey Supreme Court did not make matters any better. It ruled that before the shield law could be overcome, the trial judge must hold a hearing where the defendant must show that the material would be relevant for the defense and was not available from other sources. It then ruled that the failure to hold such a hearing in Farber's case was irrelevant, because if there had been a hearing Farber would surely have lost. The New Jersey court simply forgot that an elementary point of due process is that we do not conclusively presume that a person would lose at a hearing that has never been held. Furthermore, a reasonable construction of the shield law would be that the legislature had already decided that reporters' sources and notes require protection; if the defense needs them, the rights of the defendant and those of the reporter need not conflict, because both can be upheld by dismissing the prosecution.^[30]

Having said all that, let us revisit Farber's case without the Shield Law. The claim then would be that the need for confidentiality is so important that Farber and the Times , and society, are willing to see Dr. Jascalevich wrongly convicted of murder (or wrongly freed—you choose) rather than disclose the information. The Times editorialized: "To betray one such source would jeopardize them all. How many reporters will be trusted to choose jail?" I have no answer for that question, but I can answer the unasked question about why Dr. Jascalevich should go to jail if Myron Farber is holding information that would set him free. The answer is quite simple: He should not. We live in a civilized society (even if reporters are not always civil), and it is not a high price to pay for that civilized society to require even unwilling people to testify for the accused in criminal cases, because that helps ensure that innocent people are not convicted.^[31]

Farber understood press theory well. To protect his sources and information he went to jail for an indefinite period. He showed decidedly less interest in lawyering, expecting Jascalevich's defense counsel to accept his word that nothing he had could help the defense. It may be true, as Farber claims, that "a reporter has only so many tools with which to work." But a lawyer, whose client stands trial for murder because of the reporter's stories, does not have unlimited tools either. Even FBI material about confidential

sources and wiretaps cannot be withheld from defense counsel, because, as the Supreme Court knows (and Farber rejects), only the lawyer can tell what is or may be useful and how it will fit into an overall judgment on the case. These determinations can be made only after seeing the data; they cannot, as Farber would have it, be made in advance. Although Farber makes nothing of it, an out-of-court exchange between him and the defense counsel is illustrative of the point. Farber tried to assure the defense counsel he was not in a conspiracy against Jascalevich. The lawyer responded, "Mr. Farber, I believe you. But maybe I have a larger perspective on the case."^[32]

Forty days in jail behind him, Farber was released when the case went to the jury. Two hours of deliberation later—in what must approach a record for speed after an eighteen-week trial—the jury returned its verdict of not guilty. Four years later, Farber published a book on the Jascalevich case, and also on his case: "Someone Is Lying " It ends with Jascalevich's statement that justice was done; but it is not clear that Farber thinks so.

An unanticipated aspect of the constitutional claim of privilege came years after Branzburg , when papers started "burning" sources—publishing confidential information after agreeing not to. In the case of William Casey and that of Potter Stewart, Woodward explained that "agreements of confidentiality cannot extend to or from the grave." In the case of Oliver North, Newsweek was incredulous when it heard North blast leaks during the Iran-Contra hearings and refer to the leak regarding interception of the airplane carrying the Achille Lauro hijackers as "very seriously compromising our national security." Maybe it did, but as Newsweek revealed, "the Colonel did not mention that details of the interception, first published in a Newsweek cover story, were leaked by none other than North himself."^[33]

But suppose reporter and editor disagree on whether or not to maintain confidentiality? This occurred with an election-eve story in the Twin Cities, when the Democratic Farm-Labor ticket was running away with the race for governor and lieutenant governor. Republican operatives decided to leak newly discovered documents that the Democratic candidate for lieutenant governor had been convicted of shoplifting twelve years earlier. Editors at the Minneapolis Star Tribune and the St. Paul Pioneer Press Dispatch cor-

rectly decided the leak was a Republican dirty trick, and printed not only the story but the name of the confidential source who leaked to their reporter. As a result, the source was fired from an advertising agency where he was public relations director, and he sued the newspaper for breach of contract, that is, of the promise of confidentiality made by the newspaper's reporter. The press naturally believes that "ethical, not legal, considerations" should determine whether it is appropriate for a newspaper to burn a source. That position is strongly supported by the fact that it is an editorial decision to publish the name that triggers the complaint. Yet ethics and law are not so separate: inducing someone to provide material on a pledge of confidentiality and then violating the pledge, with significant harm to the source, is not behavior to be encouraged.^[34]

Initially, two lower Minnesota courts ruled that each of the papers violated a valid contract and should pay for the harm it caused. The trial court went even farther and authorized an award of punitive damages on the basis that the promise was fraudulent. Because the action was for breach of contract, the courts held, the First Amendment was irrelevant. That conclusion is simply wrong, as a quick look back to Chapters 3 and 4 makes clear. A mere common-law label—"contract" rather than "libel"—does not make the Constitution disappear. Rather, just as in the judicial decision to force disclosure of sources, consideration must be given to the totality of factors. In the Minnesota case, the factors included that the source, a very experienced political operative, was inducing the promise of confidentiality without divulging the nature or datedness of the information; that he did not disclose to the reporters that he was spreading his story like shotgun pellets (because he feared some papers might not find it newsworthy and others might balk at the dirty-tricks quality); and that the Republican campaign was lying in denying its role in the disclosure. The Minnesota Supreme Court corrected the errors, holding there was no contract at all, and if there were it would violate the First Amendment.^[35]

Burning sources, hiding behind fictitious sources in libel cases, withholding information to make it more likely a criminal defendant will be convicted—all in the name of freedom of the press. What the cases add up to—especially when there is no need to subtract an indictment for leaking classified information inside the

Beltway—is the wisdom of the Supreme Court's Branzburg decision. A general privilege to withhold would do neither the press nor the public a service. Specially tailored decisions, reflecting both the needs of a free press and the legitimate need to have access to a reporter's information, will serve both press and public by allowing a reporter to respect confidences in the vast majority of circumstances. Branzburg never held that the First Amendment did not protect the relationship between reporter and source; it did hold that not all confidences are of the same magnitude. Anthony Lewis of the Times correctly wrote that "nothing in Branzburg or Farber allows exposure for exposure's sake," and if there were any indication that a request for confidential information was based on the desire to break the relationship rather than the desire to have the information, then to enforce the request would be unconstitutional.^[36]

III

When Justice Stevens wrote that "without some protection for the acquisition of information about the operation of public institutions the process of self-governance contemplated by the Framers would be stripped of its substance," he was dissenting from the Court's refusal to grant the press special access to prison facilities. At a time when reports on prison conditions would create page-one news against the desires of the captors, the Court was adamant that the First Amendment could not open closed doors.^[37]

The amazing outgrowth then became, not just closed prisons, but closed judicial proceedings as well; in Gannett v. DePasquale , the Court awarded its justice seal of approval to the practice. It held that the Sixth Amendment's guarantee of a public trial belonged not to the public, but to the defendants; they could, accordingly, waive that guarantee if they thought it in their interests to do so. Gannett held that such a waiver did not violate the First Amendment rights of either the public or the press, because the trial judge properly assessed the competing interests when he concluded that the defendants' right to a fair trial must prevail. As the defendants argued, the "unabated buildup of adverse publicity" was simply too much.^[38]

Sounds like yet another sensational murder trial. And indeed it

did have all the necessary ingredients: a bullet-ridden boat; a disappearance, but no body; and one of the two defendants being only sixteen and a juvenile under the laws of the state of capture. But the case was not big news everywhere. The New York Times , for one, ignored it.

Three friends had gone fishing on Seneca Lake near Rochester, New York. One never came home; five days later his two friends were found with his pickup truck in Michigan. On July 22, 1976, the Gannett morning and afternoon newspapers in Rochester, with a circulation of somewhat over 1000 in Seneca County (population 36,000), reported the arrest. There was a story each of the next three days: the arrestees' waiver of their right to challenge extradition to New York; their leading police to a buried gun; and their arraignment in Seneca County. A week later the papers carried two stories, one on the indictment and the other on the pleas of not guilty. That was it. Despite the great plot, there was no sensationalism; and only a single 1959 picture of the missing man, who had formerly been a policeman in a Rochester suburb, had been printed.^[39]

The facts are such that the likelihood of a plea bargain seemed overwhelming—especially since 90 percent of all criminal cases are disposed of without trial. All that was needed was a preliminary hearing to determine whether the state would be allowed to use the defendants' confessions as well as the gun. The outcome of the hearing would determine the level of offense likely to be agreed upon in the plea.

That hearing came three months after the initial pleas of not guilty were entered. In that ninety-one-day period, not a word about the case appeared in the Gannett papers. Yet at the beginning of the preliminary hearing, the trial judge granted the defendants' motion to close it to the public. The hearing was held, and subsequently Seneca County maintained its perfect 1976 record of no criminal trials—the defendants pleaded guilty to lesser included offenses.^[40]

Gannett's reporting did not represent anything out of the ordinary. These were not defendants who were being tried and convicted in the press. If Gannett could be excluded from this hearing, then probably the press could be excluded any time the parties wished and the trial judge agreed, even from the actual trial.

That, indeed, was Justice Rehnquist's point in a separate opinion. He felt the Supreme Court had quite properly given trial judges carte blanche to close their doors. Since the Sixth Amendment right to a public trial was personal to the defendant, no reasons whatsoever had to be shown for the defendant to obtain closure. Nor should First Amendment claims fare better. "It is clear that this Court repeatedly has held that there is no First Amendment right of access in the public or the press to judicial or other governmental proceedings." If the press was interested in a "sunshine law" it should look to the legislature, not the First Amendment.^[41]

In what seemed an overnight transformation of practice, judges nationwide accepted the Court's offer and went behind closed doors to hear cases. In the year following Gannett there were 272 motions to close criminal proceedings, and well over half were successful. In the majority of cases, whether successful or not, trial judges treated the motion to close as nothing out of the ordinary and thus offered no reason for their grant or denial of the motion. Most motions, like that in Gannett , sought to close pretrial hearings (typically the dispositive stage of the case), but according to the Reporters Committee for Freedom of the Press, there were also 33 closed criminal trials in that year.^[42]

One of the tersest acceptances of the power Gannett placed in judicial hands came in Virginia, whose supreme court affirmed the closure of a murder trial in a single sentence, citing Gannett . John Paul Stevenson had been indicted for the knife murder of Lillian Keller. He had been staying temporarily with his brother-in-law (also indicted) in a room next to Keller, a live-in manager of a motel. The murder weapon was found in their room, but without fingerprints. Stevenson's Maryland driver's license had been found in the victim's room, and the police, using it, obtained a bloodstained shirt from Stevenson's wife that was matched to the victim. At trial Stevenson and his brother-in-law were found guilty and sentenced to prison.

Stevenson appealed, and the Virginia Supreme Court ruled that testimony about the bloodstained shirt was hearsay and should not have been allowed at trial. Eight months later Stevenson's retrial commenced; but a juror asked to be excused, and there being no available alternate, Judge Richard Taylor declared a mistrial. A

week later Taylor declared another mistrial, apparently when one prospective juror told others about the earlier reversal of Stevenson's conviction, which had been reported by the Richmond News Leader in its story about the previous mistrial.^[43]

The prosecutor was not about to quit. The third attempt to retry Stevenson occurred three months later. Before the trial, Stevenson's lawyer moved that the courtroom be closed to the public, stating that he did not want information being shuttled between spectators and witnesses during any recesses, and that he did not want jurors to get any information from newspapers. Taylor agreed, and the court was closed.^[44]

With the courtroom clear, the commonwealth presented its case. Then the defense moved for yet another mistrial. The judge excused the jury, and in the presence only of the court reporter, the prosecutor, and the defense counsel, he threw out the commonwealth's case. A barely audible dictabelt indicates that Taylor said something like "the prosecution's case is filled with holes." There was no mistrial this time. The judge entered a verdict of not guilty and Stevenson went free.^[45]

Gannett had set off a storm of protest when it came down. If it allowed secret trials and acquittals without reasons given, such as that granted by Taylor, then it was seriously flawed. Furthermore, in an unprecedented display of public backpedaling, four justices made extracurricular comments on the case during the summer, the most intriguing being Chief Justice Burger's assertion that lower court judges were misreading an opinion that "referred to pre-trial proceedings only." The Court's flight from Gannett and from Rehnquist's apparent carte blanche was made official the next term, when every justice save Rehnquist voted to reverse the Virginia Supreme Court's conclusion, in Richmond Newspapers v. Virginia , that Gannett authorized closing Stevenson's trial.^[46]

Simply to note that there was no opinion for the majority is too misleading; rather, there were six opinions for the seven judges voting with the majority, and no opinion commanded more than three justices. The opinions of Chief Justice Burger (joined by White and Stevens) and Justice Brennan (joined by Marshall) made the fullest attempts to explain the result, and they have proven to have the most staying value.

Ironically, Burger's opinion was a replay of the losing side in Gannett . The opinion, like Blackmun's dissent a year earlier, referred respectfully to the long, "unbroken, uncontradicted history" of open criminal trials. Citizen access to trials "historically has been thought to enhance the integrity and quality of what takes place." Well and good, but all of that could have been said a year earlier to open the hearing in Gannett; what was new was that the Chief Justice added a brut ipse dixit, that the First Amendment was the guarantor of continued openness "in the context of trials," together with a disclaimer, that it mattered not whether one spoke of a "right of access" or a "right to gather information." Beyond the long history of openness and its recognized importance, however, there was nothing to indicate why the First, rather than the Sixth Amendment, should have served as the vehicle of decision.^[47]

Because Brennan's opinion explained that puzzle, it is by far the more satisfying. Relying on a recent speech he had made at the Rutgers Law School, Brennan wrote that the First Amendment plays an essential "structural role in securing and fostering our republican system of self-government." By focusing on structure, Brennan looked to the "indispensable conditions for meaningful communication" and echoed Meiklejohn and Emerson, quoted in the introduction to this chapter. Fortunately, Brennan recognized that the rhetoric has "theoretically endless" reach. To create the necessary boundaries, he suggested that "practical necessities" must be considered. Fleshing this out, he, too, was impressed by the long tradition of openness of criminal proceedings, and he added that "the value of access must be measured in specifics." Because rhetoric can always make the case for openness, Brennan asked instead how important openness is to the proceeding in question. Again, given Anglo-American history, that question answered itself.^[48]

In a brief concurring opinion, Justice Stevens called Richmond Newspapers "a watershed case": never before had the Court held that the public had an entitlement to the acquisition of newsworthy information. Although Stevens's message was probably more intended for lower courts, the press has taken it to heart.^[49]

Press joy over Richmond Newspapers nicely counterpoints the earlier despair over Branzburg and Farber . Each reaction was ex-

cessive. Branzburg and Farber did not annex the press as an investigating arm of the state, and Richmond Newspapers did not turn the First Amendment into a sunshine law. Although the Supreme Court can create a new constitutional right any time the mood strikes, it is worth remembering that no one thought the First Amendment granted a right to confidentiality of reporters' sources until the Herald-Tribune's entertainment writer brought the claim forward, 169 years after the First Congress framed the language of the amendment. When Branzburg rejected the claim, the Court was taking nothing away from the press but a dream; however evil and awful—and "terrifying" to Theodore H. White—the decision may have been, it simply restated what had always been the case. Richmond Newspapers , on the other hand, presented the example where Virginia was taking from the public and the press a right long held, exercised, and believed essential in our society. Instead of validating Virginia's stark reversal of the presumption of open trials, the Supreme Court validated, as with Branzburg , the status quo ante. The distinction between misfeasance and nonfeasance may be slippery, but sometimes it is clear; and when it is, misfeasance is quite properly perceived as the more wrongful.^[50]

If the context of Richmond Newspapers suggests that its rule may be narrower than it appears, so does reality. Despite all the good things that flow from public access to government proceedings, there are times and places for secrecy. Even when we celebrated the revolutionary bicentennial in 1976, speeches hailed less the revolution than the stable legal order established after 1787. No speaker could offer enough praise of the Constitution and of the framers who conceived it—in secret. All historians agree that without secrecy there would have been no constitution, because the opponents of the key compromises would each have had the opportunity to mobilize separate opposition and scuttle the document—which had enough trouble being ratified anyway. Are we now to hail a document conceived in secrecy as dedicated to the proposition that government business must always be conducted in the open? Maybe, but I doubt it; and at a minimum the drafting of the Constitution in secrecy should offer a caution light, one that the Supreme Court may indeed have an incentive to turn red.

The sacred cow of all secret decision making is the Supreme

Court's own Conference, wherein the justices discuss argued cases and tentatively cast their votes. Every justice for the past two hundred years would have agreed that the Conference must remain private. Yet for years, as Justice Scalia most recently complained, Conference has consisted not of discussion or efforts at persuasion, but of short speeches announcing how each justice will vote. The Brethren may have demystified the Court for a wider public, but the various criticisms of the book's washing the Court's linen in public never suggested that the authors got it wrong. When Potter Stewart can lead four other justices in leaking about the sacred institution and what occurs, maybe the time has come to say the obvious: the Court's decision making probably would not be either different or worse if done in public view. Just how would someone justify members of a deliberative body agreeing to join the majority opinion before they have even seen the dissent (as happens almost always)? But ending the secrecy is not going to happen or even be considered, because secrecy will always have nine friends at the Supreme Court.^[51]

While I am thus skeptical about Richmond Newspapers as a fullfledged sunshine law, it is nevertheless important in preventing the judicial behavior exhibited by Judge Taylor and by the trial judge in Gannett . The Supreme Court's Conference may not be an open institution, but trials are; and Richmond Newspapers , while possibly doing no more than open closed trial doors, at least has done that. In subsequent cases the Supreme Court has ruled that the public cannot automatically be excluded from the courtroom when an underage victim of sexual offenses takes the stand; from jury selection; and, even in the face of a claim about denial of a fair trial, from preliminary hearings when they function as a trial. In extending Richmond Newspapers , the Court has eschewed absolutes and indicated that it would approve closure when higher values were at stake and when the closure is narrowly limited to preserving those values. Thus it is doubtful that civil cases could be constitutionally closed. The end of the line, however, is at grand juries, where the Court has been careful to emphasize continuously that "the proper functioning of our grand jury system depends upon secrecy." While that may be a questionable conclusion, it fits with the historical explanation and serves to reinforce a melding on the approaches of Burger and Brennan in Richmond Newspapers: from Burger a

respect for the tradition, from Brennan a consideration of the "practical necessities" of the situation.^[52]

IV

The Scotsboro Boys, blacks in 1931 Alabama charged with capital rape (of a white woman), werw tried Without according them counsel—a legal lynching. The Supreme Court intervened by holding, in Powell v. Alabama , that under the cricumstances counsel was necessary. Three decades later, in Gideon v. Wainwright , the Court held that counsel was necessary in all felony cases. In between, however, the Court struggled with a rule that held that counsel was necessary only when there were spicial circumstances that made the case too complex for the defendant (with some assistance from the judge) to handle his or her own case. After a decade and a half it became clear that capital cases always have special circumstances. But it still took another fifteen years for the powerful rhetoric about the function of counsel to fruition in Gideon . Yale Kamisar, in an early comment on Richmond Newspapers , referred to the commentaries that treated the case broadly as a sunshine law decision: "Someday the views they advance may be the law of the land. In the meantime, however, many more battles will have to be fought. Someday we may look back on Richmond Newspapers as the 'Powell v. Alabama ' of access to government controlled information—but it was a long, hard road from Powell to Gideon ."^[53]

My guess is that it will be an even longer, harder road. There is language in Richmond Newspapers to ease the journey. Burger would have liked to limit his opinion to trials and nothing else, but as Brennan noted, logic pushes farther. "The explicit, guaranteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could be foreclosed arbitrarily." There is nothing inherent in trials that prevents Burger's observation for being transferred to any government institution.^[54]

What will operate as a check is Brennan's emphasis on practicalities. The Supreme Court, in fact almost everyone, recognizes a place for secrecy in our society. This means there is an immediate countervailing principle to openness already in place. the funda-

mental need for counsel in criminal cases was far clearer, and only the cost of providing it was offered as a countervailing principle. Furthermore, every criminal case presented the possibilities of "special circumstances" requiring counsel, so that the operative rule between Powell and Gideon produced litigation. Treating Richmond Newspapers too broadly, and forgetting that secrecy, too, has its place—which the press, apparently unaware of the irony, knows from its own claim inBranzburg —would turn every closed meeting into a violation of the First Amendment. There is today a lot of freedom of information act and sunshine act litigation. That is fully appropriate; laws on the books should be enforced, even if government officials would have it otherwise. But to treat Richmond Newspapers broadly would add to all of this extensive litigation a constitutional claim that could be pushed beyond the statutory one. Practical necessities suggest that courts will not be overly receptive to that solution.^[55]

The press's right of access to people and places has proven more difficult to establish than the right to publish, but this should not be surprising. Our Constitution, noble document that it is, was nevertheless written in the late eighteenth century. It has kept up well through much of our history, but the establishment of the welfare state has created strains. Through most of our history, liberty has been conceived negatively as preventing the state from doing harm to the citizen. It is only in the past few decades that liberty has also been seen positively, with the state having a facilitative role. Yet despite the new realizations, and despite justices with the best of intentions, it has proven all but impossible to create a constitutional jurisprudence of entitlements. Press claims for access have fared somewhat better than others, in large part because the court closings (as opposed to the closed prisons) could be litigated as a state intrusion on a long-held privilege.

Although interconnected in the structure of communication, the claim of confidentiality is a negative claim and could have been accommodated. The claim as presented failed largely because it was too difficult to administer. In narrower contexts, where the issue can be reduced to aspects of governmental intrusiveness, it fares better.

The ties between access and confidentiality, beyond their necessary relationship to acquiring information, are that both can be

defended with powerful First Amendment rhetoric and each lacks helpful stopping points. Justice White noted that newsgathering qualifies for First Amendment protection, while he simultaneously rejected the privilege asserted. The failed-access cases carry a similar message of recognition of the First Amendment claim coupled with an inability to implement it. There is more of a constitutional dimension to the general claim than judges can competently enforce. This being the case, other governmental officials have an important duty to facilitate the acquisition of information by the press—as shield laws, sunshine laws, and freedom of information acts recognize—and an equal duty on judges to broadly construe legislative efforts to implement these inchoate rights. In this respect it is especially troublesome that the New Jersey courts in Farber failed to realize that the legislative mandate allowed accommodation of both First and Sixth Amendment rights, by dismissal of the prosecution if the withheld evidence was essential. The legislatures do not often lead; when they do, judges need not be grudging in their interpretations. Finally, government efforts, from whatever source, to block willing dissemination of information should be interpreted as barriers to the necessary functioning of the press in our democratic society.