Nineteen years have passed, almost to the day, since Sam Ervin conducted Senate hearings on the right of a reporter to protect his confidential sources. Nothing much came of those hearings, for which Sam and the good Lord may be thanked, but it is a measure of the continuity of the issue that the Senate once more is involved in the harassment of reporters.
This time around, the Senate's involvement is unusually fatuous. During the hearings last summer on confirmation of Justice Clarence Thomas, someone leaked information.
The assumption is almost inescapable that the leak came from a member of the Senate Judiciary Committee or from someone on a senator's staff.
Nina Totenberg of National Public Radio and Timothy Phelps of Newsday checked out the tip and did what good reporters are obliged to do. They reported the story. Now the committee has retained special counsel to track down the leak, and the counsel has subpoenaed the two reporters to testify.
If Phelps and Totenberg refuse to disclose the source of the leak, they could be prosecuted for contempt of Congress. Hypothetically, they could be sent to jail.
It would be no defense to contend, truthfully, that EVERYONE has contempt for Congress. When senators set out to behave like jackasses, they positively invite the scorn this travesty deserves.
Nothing will come of the committee's huffing and puffing. The two reporters will tell the special counsel what he may do with his precious subpoenas. Some committee member with at least minimal intelligence will move quietly to call the whole thing off, and the committee's harassment will sputter to an indecisive end. Sic semper tyrannis. Thus always with blowhards.
Getting back to Sam Ervin in 1973. A reporter meets a few wonderful people along the way. Sam was among the best _ a North Carolinian, a great student of the Constitution, a gifted storyteller, a man who seasoned his wisdom with humor.
The hearings that February had their genesis in Richard Nixon's hatred of the press. In the first two and a half years of the Nixon administration, CBS and NBC alone received 121 subpoenas. In 1970 Nixon's ill-fated attorney general, John Mitchell, issued "guidelines" for the use of quasi-judicial federal agencies in requiring reporters to reveal their sources.
Seeking to please the press, several senators introduced bills to enact a federal shield law. Cranston of California had a bill; so did Weicker of Connecticut and Schweiker of Pennsylvania. The bills were wrongly conceived and miserably drafted, and Senator Sam knew it, but the sponsors were pressing for a hearing. He asked a few of us who opposed the bills to testify, and I did my bit.
Ervin understood with great clarity the role of the press in a free society. He had been a judge, and he understood the role of the courts. Freedom of the press is a great right, but it is not an absolute right. Reporters are citizens before they are reporters, and in criminal proceedings they must be subject to the same rules that apply to everyone else.
Under the Sixth Amendment, the accused has a right to be confronted with witnesses against him. Especially in capital cases, when a defendant's very life is on the line, it is preposterous to contend that a reporter may withhold information vital to the defense on the grounds of "protecting a source."
But Sam Ervin loved history and he held the long view. In the 1973 hearings he quoted approvingly from Justice Potter Stewart's dissent in a famous case that had been decided the year before. If reporters cannot protect their sources against the unrestrained use of the power of subpoena, "valuable information will not be published and the public dialogue inevitably must be impoverished."
That is the crux of the pending case. Until Phelps and Totenberg broke the story, the allegations of sexual misconduct against Justice Thomas might have hovered over his confirmation like a poisonous cloud. His accuser might have remained free, as she had hoped, to fire from ambush. The senators or staffers who leaked the story felt that publication would defeat the nominee. Their blunderbuss misfired.
We are not dealing here with criminal law. The two reporters violated no federal statute. They did their job; and to the chagrin of other reporters who were scooped, they did it well. The current investigation will serve only to waste the taxpayers' money and to make the Senate look stupid. But what else is new?
Universal Press Syndicate