Freedom of the press has never been under more serious attacks. The most recent incident in which law-enforcement officials throughout the country have obtained warrants to search newsrooms since the landmark Stanford Daily v. Zurcher decision by the US Supreme Court two years ago involves the police-seized videotapes of a prison uprising belonging to station KBCI-TV in Boise, Idaho, in late July.
"Not only the media, but the American people" have been the subject of "a terrible infringement of their rights" because of that decision, says Osborn Elliot, dean of the Columbia University graduate school of journalism and former Newsweek magazine editor in chief.
The federal government is considering two approaches to tighten safeguards for newsrooms from such searchers. A bill is pending before Congress that would require police and other law-enforcement officials to have at least a subpoena before they conduct their searches. The second approach may lie in the adoption by the US Justice Department of strong guidelines in this regard that would serve as "models" for state and local officials.
A shadow has been cast over the prospects of the Documentary Protection Act of 1980 -- in this session at any rate. Rep. Robert Kastenmeier (D) of Wisconsin has introduced an amendment that would require law-enforcement officials to obtain subpoenas for searches of "all third parties" to a court case, not just the news media. The Justice Department and many congressmen are "fighting this tooth and nail" even though it passed a key House judiciary subcommittee by a 16-to-11 vote.
The entire measure now is awaiting action by the full House. That action may come in the next several weeks, according to several close observers.
At that time, Rep. Tom Railsback (R) of Illinois will introduce an amendment to strike the portion of the bill that refers to "all third parties," according to Railsback spokesman Joseph Wolf. Mr. Wolf adds that the bill, as-is, might pass the House, but would likely not pass the Senate with the Justice Department so opposed to it.
Thus, there are two probable directions that newsroom protection efforts can take. The reference to all third parties could be deleted and the press alone be protected from searches without a subpoena. Or, Representative Kastenmeier, who claims that if the press has the right not to be searched without a subpoena then all Americans ought to have it, might be favorably disposed toward Justice Department guidelines as a temporary step in the right direction, close observers say.
But guidelines that serve as models, says Prof. Benno Schmidt Jr. of the Columbia graduate school of law, "are not going to be effective when it comes to states and localities." Thus, local police, for all practical purposes, still would be free to search a newsroom or editorial office with or without a subpoena.
Dean Elliott sees a potential for possible "reversal" of the Supreme Court's Stanford v. Zurcher decision because of the High Court's favorable decision on the press last month involving press coverage of trials. On July 2, by a 7-to-1 vote, the court reversed a Virginia Supreme Court decision that barred access of the press to a murder trial in that state. News organizations across the nation hailed the ruling as a major victory.
But Professor Schmidt and others do not think this decision will have any bearing on what the court does in regard to newsroom searches by police and prosecutors on the basis of a search warrant. Nor does he think the court should reverse itself.
"The Supreme Court," he says, "is unwilling to recognize any priviledge for the press that is not available to others. Journalists are not the only people with First Amendment rights. . . . I don't think the court should do it, but Congress is in a much better position than the court to assess the damage to the press."
He added that "at the very least, the line should be drawn [By Congress] that searches be conducted by subpoena" in which the third party has the right to a hearing before the search is made.
As troubling to Dean Elliott as actual police searches of media offices is the fact that "nobody can really know how many newspaper [or TV or radio] stories have been missed as a result." He was referring to the fact that many so-called "sources" for news stories may be so intimidated by the possibility of jeopardized confidentiality by such a search that they will not talk to newsmen.