Controlling Crime News: Sense or Censorship?

Without noticeable movement toward a meeting of minds, the American press and bar have been debating the conflict between a free press and the rigid to a fair trial. This article, try a lawyer and writer now based in Santa Barbara, will be part of THE CRIME WAR,to be published by New American Library, Mr. Cipes here examines the controversial Reardon Committee report of the American Bar Association and the press’s generally outraged and sometimes fatuous response to it.

by Robert M. Cipes

FOUR days after the assassination of President Kennedy, the New York Times published a letter from its own managing editor, Turner Catledge. Catlcdge wrote that a Times news report had erred when it referred to Lee Harvey Oswald as “President Kennedy’s assassin.” Said Catlcdge: “Although Oswald was accused of the assassination and the Dallas police thought they had an airtight case against him, he was never tried and convicted. Under the American system of justice, he is innocent until proved guilty. Future articles and headlines will reflect that fact.”

While such posthumous regard for Oswald’s rights is overdone, it reflects growing concern with standards of crime reporting. There are surely more significant issues of public affairs, yet because the prerogatives of the press are involved, there are few which have generated so much newspaper space and such heated debate. In response to the Warren Commission Report, and with, tensions heightened by a recent spate of sensational trials, the legal and journalistic professions are groping for standards which will bridge the uneasy gap between the constitutional rights of the press and those of the accused. An American Bar Association committee has drafted a tentative code to regulate crime publicity, which has met with almost uniform condemnation by newspaper publishers and editors. This month the code will be hotly debated at the ABA’s annual meeting in Hawaii; later it will be voted on by members. As tHe battle between the press and bar seems headed for its final round, a close look at the controversial proposals is in order.

The publicizing of sensational crime is as old as crime itself. In America, with its dual institutions of trial by jury and assertive journalism, the key issue is the influence of publicity on the minds of jurors. One critic posed it this way: “In the case of a particularly audacious crime that has been widely discussed, it is utterly impossible, that any man of common intelligence, and not wholly secluded from society, should be found who had not formed an opinion.” This was in 1846. During the newspaper circulation wars at the turn of the century, Arthur Train called yellow journalism the “most vicious factor in the administration of criminal justice.” Train damned the newspapers for creating false sympathy for defendants, rather than bias against them. This docs not change the issue, of course; it simply illustrates a difference in environment.

Each decade has had its causes célèbres, and each cause célèbre has produced a wave of revulsion and talk of curbing excessive publicity. But it has remained just that — talk — with no tangible reforms. This time may be different. One result of the Warren Report was the appointment of the ABA committee to study publicity. It is known as the Reardon Committee, after its chairman, Justice Paul Reardon of the Massachusetts Supreme Court, Last October, after two years of work, the committee released its recommendations. It found that most prejudicial material is not the result of independent news reporting but originates with law enforcement officers and lawyers (both prosecution and defense). Hence the committee recommends strong controls over all participants in a criminal case. Its theory is that by drying up the source, most offensive material will not find its way into the newspapers. The committee would not entirely immunize the press. It could be punished for contempt of court but only for flagrant abuses which affect the jury’s verdict.

Despite the modest nature of its proposals, the Reardon Report has outraged the journalistic community. For example, the president of the American Society of Newspaper Editors has called it “detrimental to society,” “selection of news, suppression of news, censorship of news,” leading to “abuse and confusion,” encouraging “the police tendency towards secrecy,” “misguided, quixotic, unnecessary and harmful to our democratic system.” Strongest criticism is reserved for proposed controls over news sources. Columbia Law professor Telford Taylor touched the crucial point -when he said: “What first appeared to be an issue of whether or not restrictions should be applied to the press has now emerged as a question ot whether or not the press will permit the bar to restrict itself.”

Consistent with a resolve to clean its own house, the ABA committee begins by proposing a change in the canons of legal ethics. This would prevent lawyers from releasing any information or opinion, about a criminal case with which they arc associated “if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.” The committee feels that the existing canon on publicity (adopted sixty years ago) is too general, and it has rarely been enforced. The new canon would bar lawyers’ statements about the following: a defendant’s prior criminal record or information as to his character or reputation; the existence or contents of any confession; the performance of any examination or tests or the defendant’s refusal to submit to such an examination; the testimony of prospective witnesses; the possibility that the defendant will plead guilty; and any opinion as to the defendant’s guilt or innocence, although a defense attorney may state that his client denies the charges.

During the trial itself, no lawyer can release or authorize any statement relating to the case, except that he may quote from or refer without comment to public records in the case. Lawyers who violated the canon would be subject to disciplinary action, which could mean suspension or disbarment. The restrictions are similar to those laid down by the Justice Department two years ago for federal prosecutions. It is in state courts, however, that most crimes of violence are tried and that the worst publicity abuses occur.

The Reardon Committee originally proposed to restrict the release of crime information by court personnel and police officers along the same lines as its restrictions on lawyers. Again, no legislation would be necessary; control would depend on the court’s inherent power to enforce its own rules. In the case of the police, however, this raises a serious question of “separation of powers” — whether the judicial branch of government has power to discipline employees of the executive branch. The Reardon Committee thinks that it docs, but in a spirit of compromise has modified its original proposal. It now recommends that the police adopt voluntary controls and that court rules be resorted to only in the event that such controls prove ineffective.

THE Reardon Committee assumes that since most offensive publicity comes from the mouths of the trial participants, controlling them will indirectly cure abuses by the press. But what happens when the press acts on its own, when an editor personally initiates a prosecution? This was pretty much the situation in the Sheppard case. Federal District Judge Weinman, in reversing Dr. Sheppard’s conviction in 1964, sized it up accurately in these words:

“If ever there was a trial by newspaper, this is a perfect example. And the most insidious violator was the Cleveland Press. For some reason that paper took upon itself the role of accuser, judge, and jury. The journalistic value of its front page editorials, the screaming, slanted headlines and the nonobjective reporting was nil, but they were calculated to inflame and prejudice the public. Such a complete disregard for propriety results in a grave injustice not only to the individual involved but to the community in general. . . . If ever a newspaper did a disservice to its profession; if ever the cause of freedom of the press was set back, this was it.”

But if the identity of the villain was clear to Judge Weinman, it was not to the Supreme Court. Its forty-page opinion does not so much as mention the Cleveland Press or its editor, Louis Seltzer, the man responsible for the Sheppard vendetta. Instead, the villain in the eyes of the Court is the trial judge, Edward Blythin (since deceased). It was Blythin’s “failure to insulate the proceedings from prejudicial publicity and disruptive influence [of newsmen in the courtroom] which deprived Sheppard of the chance to receive a fair hearing.” How Blythin, who did not enter the case until months after the press had done its damage, could have insulated the proceedings is a problem in metaphysics which the Court does not resolve.

The Sheppard opinion found it unnecessary to consider “what sanctions might be available against a recalcitrant press.” In its anxiety to evade this issue, the Court scrambled for a precedent, some authoritative guide that would get it off the hook, The most authoritative thing available was the Chief Justice’s own Warren Commission report. Not bothered by dissimilarity in the cases, the Court proceeded to build the flimsy Sheppard structure on the Warren foundation. It is obvious from reading the opinion that Justice Clark, its author, not only had the Warren Report at his elbow as he wrote; he also literally tore some pages from the report and called them the Sheppard case: “Neither the press nor the public had the right to be contemporaneously informed by the police or prosecuting authorities of the details of the evidence being accumulated against Oswald [Sheppard].” And again: “Bedlam reigned at the courthouse [read “police station”] during the trial and newsmen took over practically the entire courtroom, hounding most of the participants, especially Sheppard.” Clark does not tell us that the entire courtroom consisted of four rows, so it was impossible for newsmen not to take it over.

Bending over backward to avoid offending the press, the Court virtually sat on the trial judge. Rarely has appellate hindsight mustered such a catalogue of “should-have-doncs.” The judge should have considered locking up the jury during the trial, though Sheppard’s counsel advisedly refrained from requesting it. He should have granted the defense motion to change the place of trial, though as one Justice indicated during the oral argument, no county in Ohio was free from the poisonous publicity. The judge should have postponed the trial until after local elections in which he was running to succeed himself. But the election actually took place during jury selection and before the trial began, so the purpose of a short postponement is unclear. Finally, the Court condemned the trial judge for “requesting,” rather than “warning,” the jury not to read newspapers during the trial.

Without specifically referring to the Sheppard opinion, the Reardon Committee doubted the efficacy of these remedies. “None of these techniques,” it said, “can at the same time (1) assure a fair trial in the face of prejudicial disclosures that saturate the jurisdiction and (2) preserve other rights of the defendant and the right of the people to see that the guilty are properly punished.” The committee illustrated its point with the following examples: “A continuance, if it is to be long enough to dissipate the effects of the potentially prejudicial publicity, may require the defendant to sacrifice his right to a speedy trial. And its purpose will be defeated if the publicity is renewed when the case finally comes up. A change of venue may also require the sacrifice of state or federal constitutional rights (as will waiver of jury trial) and will undoubtedly be ineffective if the case is one of wide notoriety. Voir dire [examination of prospective jurors] . . . cannot fully cope with a juror’s failure to be candid or with influences that occur below the level of consciousness. Sequestration [locking up the jury during the trial] does not remedy the effects of pretrial publicity and may itself prejudice the defendant because of the inconvenience and annoyance to the jurors. Admonitions to the jury have often proved ineffective [as conceded by almost half the judges responding to the committee’s poll].”

IF THE Supreme Court thought the restricted scope of the Sheppard opinion would be understood or its professional courtesy to the press reciprocated, it was due for disappointment. The president of the American Society of Newspaper Editors said the opinion would “hide from public knowledge virtually all of the facts of law enforcement and the administration of justice.” He called it a step in the direction of the English rule where the contempt power is invoked freely against journalists. Misunderstanding of the Sheppard case reached crisis proportions when a famed constitutional law professor told a conference of state trial judges (meeting in Canada) that the opinion invited them to use the contempt power against the press. Although Justices are not accustomed to publicly interpreting their opinions, the professors statement was too much for Justice Clark. Addressing the same conference the next day, Clark protested. It’s all a mistake, the Justice declared. We didn’t say anything about the contempt power, or set standards for the press. Perish the thought. The Justice even denied that the Court intended to prescribe rules for judges: “We laid guidelines the court might follow, not guidelines they must follow.”

Even this unusual effort at clarification did not dispel the misunderstanding. Some judges continued to read the Sheppard opinion literally. At Sheppard’s own retrial, for instance, the new judge (having read what Clark said about “bedlam”) refused to give scats in the courtroom to any but local newsmen or wire-service representatives. Reporters from such national publications as Life and the New York Times had to wait in line daily beginning at 7:30 A.M. in order to compete with curious housewives for the few vacancies in the courtroom. Those who left their seats to meet a deadline did so at the risk of losing them. Some days these reporters did not get in at all.

Only a month after the Sheppard case was decided by the Supreme Court, an event occurred which was to throw an already fuzzy subject into a state of confusion. On July 14. 1966, eight Chicago student nurses were slain in their dormitory. Effective police investigation quickly produced a suspect, Richard F. Speck, whose fingerprints were found in the dormitory and who was identified from a photograph by the lone survivor. Speck’s photo was plastered on every front page as a massive manhunt began. As a result of this publicity he was soon recognized, by a physician treating him after a suicide attempt.

In April, Speck was convicted of the eight murders and sentenced to death. Since prejudicial publicity is bound to be an argument on appeal, it is worth examining what that publicity was. The first question is the propriety of news disclosures before Speck’s arrest. Taking the Reardon Report as a guideline, it specifically permits the police to release any information necessary to aid in the defendant’s apprehension or to warn the public of any dangers he may present. Clearly there is a public interest in stopping a dangerous criminal before he commits further violence. Thus the Chicago police acted properly in publishing Speck’s picture and conducting the manhunt. It was not necessary, however, to announce positively and repeatedly that Speck was “the killer,” nor to disclose all the damaging evidence against him, especially the fingerprint evidence (the accuracy of which became a key issue at the trial). Even if disclosures were necessary to aid in Speck’s apprehension, public interest in the disclosures ends when the suspect is arrested. Here, however, the police superintendent compounded earlier injury by adding even stronger public assurances of Speck’s guilt.

As the trial date approached, the judge granted a change of venue from Chicago to Peoria. Though any difference in the degree of news coverage was doubtful, the prosecuting attorney did not oppose the motion. Like the judge, he would do everything possible to preserve the conviction that would almost certainly be obtained.

Shortly before trial, the judge issued a fourteenpoint order regulating reporters. It covered everything from sketching in the courtroom (prohibited) to the consequence of visiting the men’s room during trial (loss of one’s place). More seriously, reporters were allowed to print only what occurred in open court (a ban going far beyond anything recommended by the Reardon Report). To make this worse, they were forbidden to purchase transcripts — a strange way to ensure the accuracy of their reports. These restrictions were all the more arbitrary in view of the jurors’ sequestration, meaning they would never have access to newspaper reports. As the trial approached, and the judge was subjected to unanimous condemnation from the press, as well as a lawsuit, he retreated one by one from many of his fourteen points. It was still necessary, however, for the state’s highest court to rule, in a suit by the Chicago Tribune, that reporters could buy official transcripts anytime they wanted to.

The formal purpose of the trial judge was of course to protect the rights of defendant Speck, The actual purpose was to protect the state’s conviction against reversal, and his own judicial rectitude. Without clear guidelines, the tendency of any trial judge, particularly in this era of close appellate oversight, is to err on the side of caution. Had the Reardon proposals been in effect in the Illinois courts during the Speck trial, the fourteenpoint fiasco would never have occurred. All of which suggests that uniform standards in the end may be the press’s best protection against arbitrary censorship.

It took six weeks to pick a jury in the Speck case, longer than it took to try the case. Partly this was because of the enormity of the crime; one murder gives each side 20 peremptory challenges, eight murders required 160. A “peremptory” challenge is exercised without stating any reason. It differs from a challenge “for cause” which the court exercises; there were also many of these in the Speck case, on grounds of opposition to capital punishment or an acknowledged belief in Speck’s guilt.

For a crime like the Chicago massacre this sixweek ritual is perhaps inevitable; the Reardon proposals would not avoid it. Indeed, by setting higher standards for jury selection they might actually aggravate the voir dire process. A juror who has formed an opinion about the defendant’s guilt will be challenged for cause “unless the examination shows unequivocally that he can be impartial.” And any juror who remembers any significant prejudicial information will be challenged “without regard to his testimony as to his state of mind.”

The committee’s conclusions about juror prejudice jibe with the results of a University of Chicago study. It found that pretrial examination is “grossly ineffective” to screen out bias; jurors often lie in a desire to be chosen, feeling that rejection reflects on their good faith. But existing rules, while irrational in assuming that court instructions can cure bias, at least have the pragmatic virtue of getting a jury selected. The voir dire examination in the Speck case might still be going on were the Reardon proposals in effect. Perhaps this only emphasizes the need to concentrate on the early stages of a case, before publicity has done its damage. Yet even here it would be visionary to expect perfect control. “There are some crimes so terrible,” as the late Mark Do Wolfe Howe said of the Speck case, “that you can’t expect either the police or the press to observe the normal rules.

Another Reardon recommendation deals with preliminary hearings. The defense may exclude the public from any pretrial hearing where evidence is heard which could not be admitted at the trial. (A record would be kept and be made public after the trial.) Without such a restriction a preliminary hearing could be used to publicize inflammatory material. This has been the English experience, about which I shall have more to say presently.

I have described the committee’s indirect controls over publicity. How about controls placed directly on the press? Can a court legally hold a newspaper editor or publisher in contempt, as is commonly done under English rules? The Reardon Committee is convinced that the contempt power may be used, providing that it is limited to narrow and clearly defined situations. The committee attributes infrequent use of the power not so much to lack of authority as to the fact that courts have placed so few restraints on the press in the first place; in other words, there has been no occasion for enforcement. The Supreme Court has never passed upon use of the contempt power in a criminal jury trial, though it has reversed contempt convictions in several nonjury cases.

Under the committee’s code there are two types of cases in which contempt may be appropriate. One is where a person, going beyond public records, makes a statement willfully designed to affect the outcome of a trial and which seriously threatens to have that effect. This applies, however, only when a jury trial is in progress, and thus may be criticized as too narrow. The type of pretrial poisoning which took place in the Sheppard case, for example, would not even be punishable under this clause. The committee has taken pains to come within the “clear and present danger” test which the Supreme Court created for First Amendment restrictions. No new legislation would be necessary to authorize this use of contempt, says the committee, except in a few states and in the federal courts.

The second type of case permits contempt action against anyone (including a reporter) who violates a judge’s order not to release information produced in a hearing closed to the public. This means that a judge cannot control disclosures (for example, of an inadmissible confession) unless he engages in the rather drastic procedure of closing his courtroom. If he follows the common practice of holding a hearing outside the jury’s presence, he cannot prevent a reporter from disclosing what went on in the hearing. He can only request the reporter’s cooperation. This is the present practice, and the Reardon Committee would not change it.

A recent case suggests that the practice can be made to work. In March, after the bank-robbery conviction of an alleged Mafia member, Federal Judge Jacob Mishler praised reporters for not printing allegations about the defendant’s past which were not admissible at the trial. “The coverage of this trial,” Judge Mishler said, “may be the most forceful argument against imposing restrictions on the press.”

THE reception for the Reardon Report among the working press, as I have indicated, has been less than cordial. Most of its proposals have been rejected by the American Society of Newspaper Editors and the American Newspaper Publishers Association. One tactic of these groups is to deny the existence of a problem, claiming a failure to show any real damage from crime publicity. Actually the Reardon Committee based its recommendations on a study of hundreds of reported decisions, on extensive interviews with trial participants, and on its own content analysis of crimenews coverage in more than twenty cities during a one-year period (1965). While the committee concedes that the percentage of cases with a serious publicity question is small, it shows that the number of such cases is substantial, far greater than has been generally believed. Nevertheless, in April the ANPA raised $150,000 for an empirical study of the problem, which is sure to provide an excuse for further delay.

The Newspaper Publishers’ report is more defensive than the Editors’. Starting with the premise that “the American Press has demonstrated its devotion to the cause of fair trial, the report predictably concludes that no controls of any kind are necessary. In fact, its only recommendation is that “the press stand ready at any time to discuss these problems with appropriate individuals or groups.” This is not even as strong as the Editors 1965 suggestion for “energetic, frequent, and continuing conversations among those concerned” with the problem.

The chief author of the Editors’ 1965 report (other reports were issued in 1966 and 1967 to respond to Reardon) was Alfred Friendly, then managing editor of die Washington Post. Friendly apparently took his own suggestion to heart and began engaging in continuing conversations with a Washington attorney, Ronald Goldfarb, an expert on the contempt power. The result of the conversations was collaboration in a book, Crime and Publicity, published May 15 by the Twentieth Century Fund, The book is undoubtedly a welcome ally for the Reardon Committee, agreeing with its essential recommendations.

Unfortunately, Friendly’s value as an ally may be weakened by the inconsistent positions that he has been taking elsewhere. In 1964, when the Supreme Court of New Jersey laid down publicity guidelines less sweeping than Reardon’s, Friendly was quoted as being “flabbergasted” by the court’s opinion. Inconsistencies persisted after publication of the Reardon Report. In a bulletin to the Editors’ group, Friendly chided his colleagues for overreacting to the bar report. One of his criticisms: “To argue, as almost every critic of the report has, that the proposed restrictions against what should not be released will invite secrecy about what should be made public is somehow not convincing.” Yet Friendly himself, in a contemporaneous piece in the Washington Post, wrote that the dangers of the Reardon proposals lie “in the excuse they may give to the police for suppressing what should not be suppressed and what the Reardon group is perfectly willing to have released.”

The impact of the Reardon proposals on Southern civil rights cases is a specter often raised in opposition to the report. Railroading of Negro suspects and cover-up of white murderers are what the report is charged with abetting. The truth is that the report is largely irrelevant in these cases. If the Reardon proposals are not available, the redneck sheriff will find some other excuse for secrecy, or he will simply dismiss reporters without any reason.

On the other hand, sanction against flagrant press abuses may never be imposed in the South, since contempt punishment must come from the local judiciary. Take the newspaper in Lynchburg, Virginia, which wrote almost daily that a Negro defendant’s Northern lawyer was “linked with Communist-front organizations.” These reports may be enough to get the defendant’s conviction reversed, but the reversal will not deter the newspaper, as the threat of contempt might.

In trying to rally liberal opinion, the news media do not make a convincing case for their impact on civil rights cases. The failure of a district attorney to prosecute or a jury to convict, and official resort to secret detention and star-chamber trials — these arc not simply signs that the criminal process has broken down and is in need of reform. Their real meaning is that government itself has become corrupt. Unfortunately, this is not a condition that will be cured by exposes in Northern newspapers.

Last February, another in the series of press-bar reports came out. This one was by a committee of the Bar Association of the City of New York, chaired by seven ty-eight-year-old Judge Harold R. Medina of the federal court of appeals. The Medina Report differs from the Reardon Report in denying power to hold news media in contempt and power to impose judicial controls on police. It is stronger than Reardon, however, in the restrictions it would place on lawyers, such as the duty to pressure clients and witnesses not to make out-of-court statements.

Judge Medina concluded his report “with a feeling of optimism,” but unfortunately it proved to be misplaced. The judge was sure that the reluctance shown by news media was due to a threat to their independence and their constitutional rights. “Once it becomes firmly established that these fundamental rights are not in jeopardy and that their contribution to the purification of the judicial process is a voluntary one . . . their cooperation will be more generously forthcoming.” Judge Medina, like Justice Tom Clark before him, was unprepared for the press’s ungenerous treatment. “A code of silence,” a “policy of secrecy in law enforcement,” said the American Society of Newspaper Editors. “Frankly, I think those people don’t realize who their friends are,” Medina lamented.

The Editors’ group believes that “putting prior restraint on news sources is equivalent to putting prior restraint on the press.” What the drying up of “live” sources really means, however, is that the laborious task of digging out the facts must be done independently. Independent reporting of crime news is now largely a myth, according to a leading trial lawyer, Milton R. Wessel. He writes, “A large number of criminal indictments themselves would go completely unnoticed if not highlighted by a tip from the police or the district attorney, and sometimes by the defense counsel.” Getting crime news without assistance between indictment and trial is even more difficult. “Absent an official tip of some kind, the reporter has no way of knowing what applications or motions will be heard.” And covering the trial, says Wessel, is the most difficult, time-consuming job of all. “The press can’t afford to assign full-time reporters . . . to any but the most exceptional cases. Stenographic transcripts are much too expensive, usually not available in time, frequently incomprehensible without exhibits and long study.”

Recognizing that without help publicity will be limited, participants in a trial often point out to the press significant matters in the record, advise them when an “interesting” witness will testify. 1 hese officials, says Wessel, adopt “the fiction that they are merely reciting what is public, ignoring that it is not otherwise available and in any event they are editorializing by selecting episodes that they consider favorable. These comments . . . actually serve to create partisan news and prejudicial comment, which for practical reasons would never otherwise exist.”

This is not mere theory. Wessel’s point was proven in a long criminal trial in which both he and this author participated. At Wessel’s request, the trial judge directed all participants to withhold any comment concerning the case until its conclusion. No restriction was placed upon the press itself, but it was arranged that “off the record tips, summaries, and digests would not be given to reporters, nor would anyone furnish free copies of transcripts to them. Despite the obvious public interest in the case, writes YVessel, and trial disclosures of relatively sensational matter, “the amazing result was that there was absolutely no public comment anywhere about it for over a month following the beginning of trial.” When one reporter finally did come upon the case, it was so difficult for him to follow that he ended up writing his articles on the theme ‘"No Publicity in Fraud Trial.” Wessel does not suggest that drying up present sources will foreclose press coverage; he believes that it will encourage the press to select and concentrate on those cases which arc truly newsworthy.

Despite scary predictions that we are moving toward the British system of strict press controls, there is little in the proposed codes that is remotely suggestive of the British system. For one thing, besides marked differences in social and political conditions, the legal conditions for the contempt power in England make sanctions possible that would never be dreamt of here. There is no constitutional guarantee of free press, and reporters and editors may be punished without having threatened any “clear and present danger” to justice. In fact, they may be punished simply for outraging the dignity of the court, regardless of any prejudice to litigants.

The British themselves have been showing signs of discontent with the way in which press controls have been operating. Insulation of criminal trials from prejudicial publicity — in notorious cases like that of Stephen Ward or Dr. John Bodkin Adams has been more theoretical than real. The press may report anything which takes place at a preliminary hearing, a pretrial inquest to decide if there is enough evidence to hold a defendant for trial. Much of this testimony may be inadmissible at the trial, but the press is free to report it anyway. In the case of Dr. Adams, who was ultimately tried for poisoning an elderly patient, charges of similar murders had been aired at the preliminary hearing and widely publicized before trial. Currently there is a bill in Parliament which would practically do away with the preliminary hearing, in part because of its abuse for publicity purposes.

British concern about the excesses of their yellow journals, which often seem to outdo ours, has been matched by doubts in the other direction —as to the failure of the responsible press to oversee critically the administration of justice. A joint committee of British jurists and journalists recently found that the press was suffering from excessive caution, probablv owing to fear of the contempt power. A relaxation of some features of the law was sought. Not only must the British press contend with contempt laws; it must also live with strict libel laws which clearly operate in favor of plaintiffs, in sharp contrast to our libel laws.

To state the British law only underlines how truly free the American press is from legal restrictions. What is it. then, that the editors and publishers are so agitated about? Joseph Kraft has referred to the human tendency to trivialize, to focus on issues symbolically related to what bothers us, but simpler to understand. The American press does have cause for alarm, but not by reason of a narrowly defined code governing a narrow and not terribly vital area of public affairs.

The press says it is lighting for “the public’s right to know.” To know what? Fhat Sam Sheppard slept with his lab technician, or that young Dr. Coppolino had an affair with Mrs. Farber? The very pettiness of most crime news, the poverty of examples of important exposures both suggest that somehow this whole press-bar fight has been inflated. Newsmen boast of their “watchdog function and cry about being “muzzled,” but has anyone gotten down to examining the dog to see if it can really bite?

To understand the malaise of the American press I think we must look beyond the courtroom and the police station. The press was given its privileged status in order to question and, if necessary, counteract the exercise of government power. In that function it is defaulting. Writing in the New lurk Review of Rooks, Andrew Kopkind has described the real sources of news suppression: “In ways which journalists themselves perceive only dimly or not at all, they arc bought, or compromised, or manipulated into confirming the official lies: not the little ones, which they delight in exposing, but the big ones, which they do not normally think of as lies at all, and which they cannot distinguish from the truth.”

The press has been tilting at windmills in this noisy debate about crime news, dissipating energies which might be better spent in a larger struggle, already deferred too long. The press is off fighting brushfires while its own house is burning down.