Federal Reporter Second Series

“ The law is not established, at least it has not been so declared, that reports can be private property. Essentially, their contents are public property. The knowledge of the decisions of courts should not be confined. It is consistent with the views of this court, that copies of their opinions should be multiplied to any extent, and in any form required. Publicity is the very thing required.
4. The reporter is a public officer, and his duty, by law, is, to publish. He has no liberty to keep back the matter which he collects and prepares, in the performance of his official duties. ”

“ A daily reading of responsible newspapers quickly discloses abundant examples of careful selectivity in the release of information by government officials, can scarcely be denied. Indeed scholars, journalists, and the American public are becoming increasingly dependent upon the release of information by the federal government for their interpretation of recent historical and current events. ”

“ With the enormous increase in criminal cases, reporters are often unable to keep up with the demand for transcripts and at the same time continue with regular reporting. Some reporters fail to make adequate arrangements for stenographers to transcribe their notes, which can be done by someone other than the reporter. ”

“ I am not interested in pleading for any special right of access to government information for newspapers or reporters. As vital as their function is, newspapers, magazines, television and radio for the most part merely provide an orderly process for disseminating information about government to the people who do not have the time, money, or technical facility to acquire the information for themselves. Transmitting information gathered at a government press conference or through a government press release does not necessarily answer the people’s right to know. ”

“ It is not, of course, always the case that information lawfully acquired by the press is known, or accessible, to others. But where the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release. ”

“ The findings of the District Court, which this court has not modified, criticised, or overruled, establish beyond cavil that, despite the fact that AP was early in the field and has grown to great size, many other reporting agencies have been established, and grown in the United States, two of which, UP and INS, are now comparable to AP 'in size, scope of coverage and efficiency.' Additional agencies which furnish substantial news reporting services in the nation total between twenty and thirty. ”

“ Whenever any movement is on foot for the securing of legislation desired by the predatory interests, or when restraining legislation is threatened, news bureaus are established at Washington, and these news bureaus furnish to such papers as will use them free reports, daily or weekly as the case may be, from the national capitol—reports which purport to give general news, but which in fact contain arguments in support of the schemes which the bureaus are organized to advance. ”

“ The defendants contend that the reporter's privilege does not apply to this case because Mr. Robinson has been subpoenaed regarding a book he is writing for his own personal gain and not for The Washington Post. The Court must reject any distinction on such grounds. First, the fact that the news gathering is conducted for financial gain is irrelevant. Reporters normally receive salaries for their news gathering efforts, Such financial gain does not taint the importance of the services to our cherished first amendment goals. ”

“ Second, the reporter's privilege must encompass all news gathering efforts, not simply those for newspapers: "The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938) .
Finally, the defendants contend that the proceedings in New York Times v. ”

“ This case however, is not controlled by this line of cases but rather by the equally well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. As the cases relied on by respondents recognize, the truthful information sought to be published must have been lawfully acquired. The press may not with impunity break and enter an office or dwelling to gather news. ”

“ The Court has already heard testimony from numerous eyewitnesses to the briefing. The Court has also heard testimony from an FBI agent who testified with the assistance of notes made during the briefing and another agent who testified from notes made within a short period of the briefing. Any testimony the reporter could offer would be merely cumulative and less than the best evidence available. There plainly are alternative means to obtain information about the briefing and the testimony of the reporter would be far less than necessary to a fair resolution of this case. ”

“ The press, in fact, 'serves one of the most vital of all general interests: the dissemination of news from as may different sources, and with as many different facets and colors as is possible. That interest is closely akin to, if indeed it is not the same as, the interest protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. ”

“ If security clearances cannot be obtained promptly, personnel in the Executive Branch having the necessary clearances may be temporarily assigned to assist the court. If a proceeding is required to be recorded and an official court reporter having the necessary security clearance is unavailable, the court may request the court security officer or the attorney for the government to have a cleared reporter from the Executive Branch designated to act as reporter in the proceedings. ”

“ In other words, we are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of 'national security.' The Government does not even attempt to rely on any act of Congress. ”

“ The parties are in the keenest competition between themselves in the distribution of news throughout the United States; and so, as a rule, are the newspapers that they serve, in their several districts.
Complainant in its bill, defendant in its answer, have set forth in almost identical terms the rather obvious circumstances and conditions under which their business is conducted. The value of the service, and of the news furnished, depends upon the promptness of transmission, as well as upon the accuracy and impartiality of the news ”

“ The evidence respecting them is seen by every one, and is in its nature conclusive.
In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people ”

“ The Freedom of Information Act, as amended, now generally requires that agencies publish in the Federal Register their substantive rules of general applicability, statements of general policy, and interpretations of law that are generally applicable and both formulated and adopted by the agency (5 U.S.C. 552 (a) (1) (D) ) . The Freedom of Information Act also generally prohibits an agency from adversely affecting a person with a rule or policy that is not so published, except to the extent that the person has actual and timely notice of the terms of the rule or policy (5 U.S.C. 552 (a) (1) ) . ”

“ Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. ”

“ Every newspaper is interested in procuring news of happenings in its vicinity, and maintains a staff for that purpose. Such news may have some value to newspapers published in cities outside the locality of the occurrence. I assume that if two publishers agreed that each should supply a transcript of all reports he received to the other, and conditioned their agreement that neither would abuse the privilege accorded, by giving away or selling what was furnished under the joint arrangement, there could be no objection under the Sherman Act. ”

“ From a policy perspective, and certainly from the private sector's perspective, it makes little difference whether an agency collects information and then disseminates it or requires those in possession of the information to submit it directly to the relevant third parties. In fact, the latter option generally will impose greater paperwork burdens on private parties, although either choice results in a federal agency imposing major paperwork burdens on the private sector. The Court's response is that one approach imposes costs on the Federal Government and the other does not. ”

“ Current FBI policy, which should be the policy for all law enforcement agencies, is that the news media may not accompany agents during raids and will not be given advance notice of such operations. Operations which depend upon surprise should never be disclosed in advance to anyone without both a legitimate law enforcement need to know about the operation and a commensurate obligation not to disclose the information. ”

“ It is argued that the content of advertising is one of the factors which may be considered, and there is evidence that the Commission itself has on occasion so interpreted its authority. [9] Further, the United States argues that the Commission has the authority to promulgate general regulations concerning the subject of advertising for the guidance of broadcasters. See Federal Communications Comm'n v. American Broadcasting Co., 347 U.S. 284, 289-290, 74 S.Ct. 593, 98 L.Ed. 699. This grant of federal power, it is argued, is sufficient to oust state regulation of radio advertising. ”

“ And not only the Pittsburgh press but the press of47 the entire country was poisoned. For the Associated Press and other news services are not independent organizations feeding news to their clients but simply interrelated newspapers swapping each other’s lies. The Denver newspapers control all the news that is read in Boston about the Colorado coal mines. The Boston newspapers control all the news that is read in San Francisco about the New England textile mills. The head of a local bureau of the Associated Press is not a reporter ”

“ We think that the statutory scheme for review, within the selective service system, of exemptions claimed by conscientious objectors entitles them to no guarantee that the FBI reports must be produced for their inspection. We think the Department of Justice satisfies its duties under § 6 (j) when it accords a fair opportunity to the registrant to speak his piece before an impartial hearing officer; when it permits him to produce all relevant evidence in his own behalf and at the same time supplies him with a fair re sume of any adverse evidence in the investigator's report. ”

“ However the by-laws may be amended, and whatever judicial blessing may be given the new text, it is certain that every refusal to deal with any newspaper will evoke a fresh exercise of the judicial guardianship. Lawful practices may be threatened with injunction, as they are in the present decree, as a lever to compel obedience in some respect thought important by the court.
The decree may well result not in freer competition but in a monopoly in AP or UP, or in some resulting agency, and thus force full and complete regimentation of all news service to the people of the nation. ”

“ Associated Press is thereby given an outright monopoly of the only available comprehensive news coverage of a great nation, no comparable substitute being available. The only other matter remaining in doubt is the by-law restriction which prevents the Associated Press members from making their spontaneous local news available to non-members and to rival news agencies. ”

“ Although en banc review is “not favored,” Fed. R. App. P. 35 (a) , and although all three panel members agreed on the result in this case—i.e., that two subpoenaed reporters can be compelled to give grand jury testimony—petitioners seek reconsideration of three issues: their assertion of a common law privilege under Federal Rule of Evidence 501; their claim to First Amendment protection; and their due process challenge to the district court’s use of ex parte evidence. ”

“ There are published in the United States about 2,500 daily papers. [1] More than 800 of them are supplied with domestic and foreign news of general interest by the Associated Press-a corporation without capital stock which does not sell news or earn or seek to earn profits, but serves merely as an instrumentality by means of which these papers supply themselves at joint expense with such news. Papers not members of the Associated Press depend for their news of general interest largely upon agencies organized for profit. ”

“ The news itself is comparatively easy to get. In a large city every court is watched every day by a representative of the press, either a reporter for an individual paper or for a city news gathering association. In some cities where there is no independent news gathering agency papers sometimes club together to keep one reporter at each court. The man who is on duty must watch all day long for cases that are of interest for one reason or another. ”