# The Media: Freedom of the Press and Property Rights **URL:** **By** Marshall E. Schwartz **Published:** May 1, 1979 --- “Which leaves one as-yet-untried defense: property rights.” The courts’ assault on the basic constitutional principles of privacy and a free press continues unabated. Beginning with the Supreme Court’s precedent-shattering 1967 decision in _Warden v. Hayden_ (on the right of police to obtain evidence from third parties not implicated in criminal activities), and continuing with such anathemae as _Branzburg v. Hayes_ (1972) and _Zurcher v. The Stanford Daily_ (1978)—the first subjecting the press to court subpoenas, the latter opening newsrooms to searches by court warrant—the nation’s judiciary has been doing its utmost to turn a _de facto_ police state into a _de jure_ one. After stripping ordinary citizens (through _Warden v. Hayden_) of their protection from police intrusions into noncriminal activities, the courts have been steadily peeling away any remaining safeguards from the press. Even so-called “shield laws,” enacted by 26 state legislatures, have proved no bar to these unending incursions. Among the most recent examples of this assault are the following cases: Last December 31, New York State Supreme Court Justice Sybil Hart Kooper ruled that the state’s shield law—protecting a reporter’s confidential sources—applied only to individuals working for “a newspaper, magazine, news agency, press association, or wire service,” and not a book author—even one who had already published 30 volumes. The case involved author Lee Hays (a former television producer) who had interviewed one Willie Frank Holman for a book he was writing about the family of Navatro LeGrand of Brooklyn. LeGrand has been indicted in the murders of a pimp and his bodyguard, and is a son of a self-styled “bishop,” Devernon LeGrand, who was convicted in 1977 of the murder of two teenaged sisters. The attorney for the younger LeGrand had asked that a subpoena be issued for Hays’s notes and the tapes of his interview with Holman. Holman was a prosecution witness in the trial of two other LeGrand brothers for the same crime, and in the trial of the elder LeGrand. On January 10, another New York State Supreme Court justice, William J. Deeley Jr., sentenced Pamela O’Shaughnessy, a reporter for the weekly _Kings Courier_, to 10 days in jail and fined her $250 for failing to identify one of her sources for an article on drug trafficking in Brooklyn. One of the alleged drug dealers mentioned in her article, Michael Zagarino, was later brought to trial on charges of selling narcotics. The chief witness for the prosecution was an undercover narcotics agent. The attorney for Zagarino sought to show that the undercover agent was one of O’Shaughnessy’s sources for her story, in order to cast doubt on the agent’s credibility. The reporter claimed the right to protect her confidential sources under the New York State shield law. Her problem was compounded by the fact that the undercover agent was never identified by name during his testimony, in order to protect his cover, so O’Shaughnessy can’t even go back to her source to ask to be released from her pledge of confidentiality, since she doesn’t know whom she is being asked to identify. On January 31, Mansfield (Ohio) _News Journal_ reporter Ronald Rutti was sentenced to jail on contempt-of-court charges by Richland County Common Pleas Judge Max H. Chilcote for refusing to surrender his notes to the judge. Rutti sought protection under Ohio’s 1953 shield law for his notes for a series of articles describing several beatings and mysterious deaths in the Richland County jail—articles which led to indictments of Sheriff Thomas E. Weikel and 11 deputies on charges that include theft in office and violations of civil rights. Weikel’s attorney sought Rutti’s notes to determine if his client’s rights had been violated during grand jury proceedings—despite the fact that Rutti testified in court that he had not talked to any grand jury member nor to any officer of the court. On February 21, the Supreme Court denied a hearing to television reporter Joe Pennington, who was appealing a 60-day jail sentence for refusing to identify a confidential source. The sentence was imposed on Pennington, who now works for KPIX television in San Francisco, when he was a newsman for KAKE-TV in Kansas. This case stems from the trial of Hilda Sandstrom for fatally shooting her husband, Thad, in 1977. A “confidential source” told Pennington that several days before the murder, he witnessed an argument (at a party) between the soon-to-be-deceased and a witness for the prosecution. This individual did not hear what was said, but was told by yet another party that the witness-to-be had threatened Mr. Sandstrom’s life. Pennington did not use the story, but voluntarily gave both defense and prosecution attorneys all the information except his source’s name. All of these incidents follow the jailing last year of _New York Times_ reporter Myron Farber for 40 days on contempt-of-court charges. Farber had refused to yield his notes for a series of articles which led to the prosecution of Dr. Mario Jascalevich for murdering three patients at an Oradell, New Jersey hospital with overdoses of the muscle relaxant curare. Farber was released only when Dr. Jascalevich was found innocent, and the trial ended. Additionally, last August 11, the U.S. Court of Appeals for the District of Columbia ruled 2-1 that the government had the right to subpoena phone records of reporters (_without_ notifying them beforehand, so that the subpoena could be contested in court) in order to determine who their confidential sources might be. (The case was originally brought in December 1974 by the Reporters Committee for Freedom of the Press on behalf of 12 journalists and two newspaper companies whose phone records had been subpoenaed by the government—and delivered by AT\&T.) Perhaps this unprecedented series of defeats for the First Amendment—and thereby for the rights of privacy and of free speech (and therefore of free _silence_) of everyone—should cause the Fourth Estate to look elsewhere in the defense of its rights. The various Supreme Court decisions, _Branzburg_ and _Zurcher_ in particular, have claimed to be efforts at striking a “balance” between prosecutorial and due process rights on the one hand, and free press and privacy rights on the other. With the state depositing its bloated weight on the side of its monopoly judicial system, there can be little doubt about what kind of “balance” will result—as recent cases have shown. The libertarian principles of _absolute_ free and uncoerced speech, and absolute privacy from police incursion except in the case of criminal activity, have been wiped away without leaving so much as a soapy film. Which leaves one as-yet-untried defense: property rights. When a source passes information to a reporter—whether orally or in written form—this information is _never_ given for unrestricted purposes. It is provided solely for use in a news story—whether in a newspaper or a magazine, or on radio or television. The transaction is actually quite similar in nature to what occurs when a free-lance writer sells “first North American rights” for a story to a magazine: The periodical is not acquiring rights to permanent use of the piece in any form, for any purpose; just the right to be the first periodical (in North America) to publish the article. So why can’t a news source, an informant, do the same thing? He is not selling—or giving—unrestricted rights to his information; he is merely granting the reporter and his or her news outlet “first North American rights” to whatever information is printed or broadcast. Anything else remains the source’s property; whatever isn’t used reverts back to him. Thus, a reporter (or newspaper or television station) couldn’t provide a court with such material, because he would not _own_ it. It would belong to the source. The whole procedure of investigative reporting would become a bit cumbersome: media lawyers would have to draw up standard contracts, and reporters would have to get their sources to sign one whenever the source wanted to remain confidential, or wanted to offer information _not_ for publication (as a “deep backgrounder,” in State Department terminology). Naturally, the contracts would include a clause making the informant’s name part of the information _not_ being sold. Even if our judicial monopoly figures out a way to eradicate these property rights as they have most other constitutional guarantees, the effort should tie up courts and the attorney general’s office long enough to give us all a breather from state harassment of our brains and the information contained therein. _LR contributing editor Marshall E. Schwartz is a past editor of the Stanford Daily and a former reporter for the San Francisco Chronicle._