interest rates supplied to the federal reserve by a number of banks around the country. Because the F.B.I. can only investigate possible violations of federal criminal law, we can only surmise that-as in the Leslie Whitten case-the F.B.I. is claiming that it is a crime to publish government information.

The Justice Department has, unfortunately, not been alone in claiming it can prosecute the news media for receiving government information without permission.

Both the State of California and the State of New Hampshire have already attempted to adopt the Justice Department approach, and we fear that other states may attempt to do this in the future.

Like the Justice Department, California has recently claimed that a news reporter and an editor can be convicted for receiving stolen government property when the property consisted of a photographic copy of a list of state civil service employees acting as undercover narcotics agents. The editor, Arthur Glick Kunkin of The Los Angeles Free Press, and the reporter, Gerald R. Applebaum, were convicted, and the conviction was upheld by the appellate division of California.10 The conviction was reversed by the California Supreme Court on technical evidence grounds. The Supreme Court did not reverse the reasoning of the Court of Appeals that the government can prosecute a newspaper for receiving stolen property."

In New Hampshire, state officials prosecuted a newspaper reporter for republishing the contents of a letter sent by a citizen to the Governor alleging graft in local government. Based on an allegation that the information in the letter was the property of the government, the reporter was arrested. The case was later dismissed.12

It should be clear that the receipt of government information and its publication by the news media in the public interest is constitutionally immune under the First Amendment and can not be subject to the blanket threat of criminal prosecution merely because the government does not want the public to know what the report contains. This is prior restraint in its most ancient form-an ability to criminally punish publication regardless of content and regardless of the effect of publication upon the welfare of the nation. In fact, the use of blanket criminal penalties-of theft, receiving stolen property, fraud and misuse of a government document-to stop publication of news-regardless of the content-employs the original prior restraint tool which the British monarchy used in the criminal libel laws to punish publication of any information which displeased the King.

We have always permitted criminal and civil penalties stemming from the effect of the published information-such as the criminal obscenity or civil libel laws-but never for the publication itself. (Cf. Near v. Minnesota).13 If then the press can only publish what the government says it can publish, the press ceases to be an independent institution operating for the benefit of the public and is converted into a government propaganda tool supinely accepting without question the information which the government decides it may publish. We start then with the premise that "the Congress shall make no law abridging the freedom of the press." And we think that numerous provisions of S-1 violate that concept. We should also like to remind the Committee that Congress was specifically ordered in Article I-not just to be neutral-but to actively encourage the free flow of information and ideas to the public: "To promote the Progress of *** useful Arts, by securing for *** Authors *** the exclusive Right to their respective Writings * * *" (Article I, Section 8). Furthermore, we have always believed that the freedom of the press guarantee includes a penumbra of constitutional rights, including the right of a news reporter to freely associate and receive information from all segments of the population, including government employees (Cf. NAACP v. Button).1

14

There are dozens of important cases which uphold the doctrine that the government can have no proprietary ownership interests in governmental reports. (Cf. Public Affairs Press v. Rickover, Pearson v. Dodd, U.S. v. First Trust Co. of Saint Paul.)" The latest is Judge Richey's decision in The

10 People v. Kunkin, 24 Cal. App. 3d 447 (1972).

15

11 People v. Kunkin, 9 Cal. 3d 245, 107 Cal. Rptr. 184 (1973).

12 State v. Norris, (Laconia, N.H. Dis. Ct., April 5, 1973).

13 283 U.S. 697 (1931).

14 371 U.S. 415 (1963).

15 284 F. 2d 262 (D.C. Cir. 1960).

16 410 F. 2d 701 (D.C. Cir. 1968).

17 251 F. 2d 701 (D.C. Cir. 1958).

18

Reporters Committee v. Sampson in which he ruled that most of President Nixon's papers and tapes belonged to the people and not to the former President.

In addition, there is the strong line of cases defending the public's right to be informed of news. This right, even more than the personal right of a public official to be protected from defamation, is certainly a more ancient and strongly rooted right than the right of the government to own information. (Cf. New York Times v. Sullivan,19 Associated Press v. Walker Rosenbloom v. Metromedia, Inc., Cox Broadcasting v. Cohn, Gertz v. Robert Welch, Inc.).23 Then, there is the specific right to republish government information contained in the 1909 Copyright Act. 17 U.S.C. Sec. 1 et. seq. which provides "No copyright shall subsist * * in any publication of the United States government, or any reprint, in whole or in part, thereof ***"

21

*

22

We respectfully suggest that the Department of Justice approach which is incorporated into this bill-permitting a criminal prosecution against a newsman for republication of a government document based on a claim of government ownership-would completely void the 1909 Copyright Act and most of the Freedom of Information Act. Certainly the freedom which the Copyright Act gives the press to republish government information is a meaningless right if a newspaper can be criminally prosecuted for exercising its republication rights under the Copyright Act. The Freedom of Information Act requires the government to prove specific information should not be released. It would be an anomoly to criminally prosecute a reporter for receiving stolen government information which could be obtained under the Freedom of Information Act. Against the Constitution, the case law and the statutes, what does the Justice Department offer as its justification? Hass v. Hinkle," a 1910 case in which three cotton speculators were accused of bribing a Department of Agriculture employee in order to obtain advance information of cotton futures and also to have false cotton future information given out to defraud the general public. We note that the Court severely limited the Hass case in the unanimous opinion by Chief Justice Taft in Hammerschmidt v. U.S." in 1924, in which he said that fraud against the government could certainly be used to prosecute nongovernment employees who use false government reports in a conspiracy involving "trickery *** bribery of an official, deceit and false pretenses." The government has chosen to ignore Chief Justice Taft and to rely mainly on the Hass opinion bolstered by Dennis v. U.S.,20 in 1966. But here again, the Dennis case involved the filing with the government of false information in order to obtain free government services, very much as if one filed a false credit report to obtain a government loan.

It seems that the Justice Department has adopted an unreasonable interpretation of two Supreme Court cases in order to cut off from the public all unauthorized government information by analogizing good faith reporting of government studies and reports with a couple of cotton profiteers in 1910 and a labor racketeer in 1966.

PARTICULAR PROVISIONS OF S-1 AUTHORIZING PROSECUTIONS AGAINST THE PRESS FOR FRAUD, THEFT, RECEIVING STOLEN PROPERTY, ET CETERA, FOR PUBLISHING GOVERNMENT INFORMATION WITHOUT GOVERNMENT PERMISSION

(1) "Section 1301 Obstructing a Government Function by Fraud “(a) Offense a person is guilty of an offense if he intentionally obstructs, impairs, or perverts a government function by defrauding the government in any manner.” As we have explained above, the Justice Department has stated that the government has the exclusive right to control the release of government information and that releasing government information without its approval is, in the opinion of the Justice Department, defrauding the government of its lawful function of controlling the release of its own information.

Example: A newspaper or television station publishes a government report showing that the White House had an "enemies list." Under the Justice De-

18 Consolidated in Nixon v. Sampson, No. 74-1533, (D.D.C. January 31, 1975).

19 376 U.S. 254 (1964)..

20 388 U.S. 130 (1967).

21 403 U.S. 29 (1971).

partment view, this would clearly be defrauding the White House of its lawful function of controlling the release of its own information.

(2) Section 1731. Theft (a) Offense-A person is guilty of an offense if he obtains or uses the property of another with intent *** to appropriate the property to his own use or to the use of another person."

This crime carries the penalty of seven years in prison if the property "regardless of its monetary value" is "a record or other document owned by, or under the care, custody, or control of, the United States."

(3) Section 1733. Receiving Stolen Property (a) Offense-a person is guilty of an offense if he ** * receives, possesses, or obtains control of property of another that has been stolen."

As we have demonstrated above, one of the main legal barriers to government prosecution of the press for receiving stolen government information has been the requirement, under present law, that it have a monetary value, a requirement which is eliminated in S-1 specifically by stating that the government property does not have to have any value.

And subdivision "d" defines the property back to any government property regardless of its value.

Example: A newspaper or television station publishes a document showing that the CIA has a list of persons it has wiretapped or subjected to other harassments. And the reporter knows that the document has been taken without authorization, or even stolen, by a government employee from his agency's files. Clearly the reporter would be "obtaining control of property of another that has been stolen," and appropriating it for his own use and under the Justice Department theory could be prosecuted for theft or receiving stolen property.

(4) Section 1734. Executing a Fraudulent Scheme (a) offense-a person is guilty of an offense to defraud if he engages in conduct with intent to execute such scheme or artifice ***"

Example: Once again, this would mean, in terms of the Justice Department prosecutions against Dr. Ellsberg, that a reporter agreeing ahead of time to accept government information-even if the plan was never completedwould be guilty of executing a fraudulent scheme.

Section 1344. Tampering with a Government Record (a) Offense-a person is guilty of an offense if he *** conceals*** or otherwise impairs the integrity or availability of a government record."

Example: A newspaper reporter is given a government document showing F.B.I. wiretapping which he uses to write a news story. Clearly, he would be impairing "the availability of a government record" and could be prosecuted under S-1.

(5) Section 1523. Intercepting Correspondence (a) Offense a person is guilty of an offense if he intentionally *** reads private correspondence to another person knowing that such contents were obtained ***without the consent of the sender or the intended recipient." This applies to private correspondence which is "mail" or "is being transmitted over the facilities of a communications common carrier."

Without any further explanation in the statute, we could easily see a news reporter being prosecuted for being given a copy of a letter of “private correspondence" indicating a government contract pay off or for publishing the contents of private correspondence which was improperly removed by a news

source.

OFFICIAL SECRET PROVISIONS

Having already subjected the press to the blanket threat of automatic criminal prosecution for receiving stolen property and fraud for publication of any government report regardless of its content, S-1 adds an additional thumbscrew by asking Congress to change current law and to subject the press to automatic criminal prosecution for "espionage" "disclosing national defense information" and "mishandling national defense information" for the publication of virtually any government information involving "national defense."

The existing espionage statute (18 U.S.C. 793) only makes it a crime to obtain "defense" information "with intent or reason to believe that the information is to be used to the injury of the United States, or the advantage of any foreign nation." Furthermore, Sections 793 and 794 4 both specifically in the statute and by court interpretation have been aimed at conventional

saboteurs interested in "a sketch, photograph, blueprint, map, model, instrument *** writing or note."

Thus, the existing law requires a clear "intent" to substantially harm the national security.

This, of course, was the great stumbling block for the Administration in the Pentagon Papers case. S-1 clearly attempts to rewrite the existing espionage statute and the Pentagon Papers decision by making it a crime for a news reporter to engage in "disclosing national defense information" (Sec. 1122). "(a) Offense -A person is guilty of an offense if, knowing that national defense information may be used to the prejudice of the safety or interest of the United States, or to the advantage of a foreign power, he communicates such information to a person he knows is not authorized to receive it. Thus, a news reporter may be prosecuted for publishing "national defense information" if he reasonably knows that the information "may be used to the prejudice" of the United States "or to the advantage of a foreign power." It is a well-known fact, in the relations between the United States and hostile foreign powers, that virtually any information from the State Department or the Defense Department that is embarrassing to the United States politically will certainly be used by a foreign power in a way which is prejudicial to the interests of the United States and to the advantage of the foreign power.

Take for example the recent disclosure that the CIA may have been involved in plans to assassinate persons in foreign countries or that the CIA was engaging in domestic spying. Does anyone doubt that the reporter who published that information could easily be "used to the prejudice of . . . the interests of the United States."

The blanket nature of this Official Secrets Act is compounded by the definition of national defense information, which includes, as Senator Hart correctly pointed out in the hearings last year, virtually any information which is published every day on the front page of every newspaper in this country; that is, "military capability of the United States or of an associate nation *** military planning or operations of the United States *** military communications of the United States * * * military installations of the United States *** military weaponry, weapons development or weapons research of the United States * * *intelligence operations activities, plans, estimates, analyses, sources or methods of the United States *** intelligence with regard to a foreign power *** communications intelligence information or cryptographic information ***"

A third difficulty with the statute is that it is not even a defense-as it was in the Pentagon Papers litigation-that the information had previously been published in the news media based on informed sources in the American government or by named officials of a foreign government. The statute specifically precludes the defense of prior publication based on confidential sources or the Prime Minister of a foreign nation, because it limits the defense to "information that has previously been made available to the public pursuant to the authority of Congress or by the lawful act of a public servant." For example, the story in the Jack Anderson column about the United States tilting toward India would be no defense to a subsequent prosecution against another newspaper for publishing exactly the same "national defense information."

"Sec. 1121-Espionage: A person is guilty of an offense, if, knowing that national defense information may be used to the prejudice of the safety or interest of the United States, or to the advantage of a foreign power, he *** obtains or collects such information, knowing that it may be communicated to a foreign power *****

Here of course, publication in a newspaper or by a television station would obviously result in communicating the information to a foreign power. We would assume that the government, in this situation, would use the lesser felony of disclosing national defense information, but there would be nothing under this Act to bar a government prosecution against a newsperson for "espionage" for publishing information out of the State Department, the CIA, or the Defense Department, which, because it was embarrassing to the government, could be "used to the prejudice of the * ** interests of the United States."

Sec. 1123-Mishandling Defense Information "A person is guilty of an offense if *** being in unauthorized possession or control of national defense infor

*

mation he, ** * engages in conduct that causes its * communication to another person who is not authorized to receive it; or *** fails to deliver it promptly to a public federal official who is entitled to receive it."

A news reporter, for example, publishes information on cost overruns or corruption in Defense Department contracts, or changes in policy in State Department negotiating attempts in the Middle East, and he is automatically subjected to the threat of prosecution because he is "in unauthorized possession *** of national defense information;" and because he published it, he has caused "its communication to another person who is not authorized to receive it."

And if, in fact, the government makes a demand on him to return the information-even if it is a Xerox or is in the form of notes because he interviewed a government official, he is subject to prosecution a second time because he "fails to deliver it promptly to the federal public servant who is authorized to receive it."

Conclusion: We think that the Congress ought to, in every possible way, encourage the press to inform the public about the way its government operates in all areas, whether it be the Department of Health, Education and Welfare, the Department of Justice or the Departments of State and Defense. Certainly there is presumption that information which the government withholds is based on a reasonable justification in the public interest. But once a news reporter obtains information about Watergate or about Vietnam or about the Middle East or about the SALT talks or about thalidomide, then, under our system of laws, the government has the burden of proving in a criminal prosecution that the publication of the information possess a "clear and present danger" to some overriding and compelling national interest.

Reporters should not be faced with possible jail terms for publishing information the government has not released. Reporters should not face jail terms for publishing any "national security information" regardless of its content.

In the Pentagon Papers case, Dean Griswold told the United States Court of Appeals that the Constitution did not authorize the courts to "second guess" President Nixon's determination that the publication of the Pentagon Papers would harm the national securtiy.

THE SUPREME COURT DISAGREED

S-1 would, in effect, void the Pentagon Papers decision. It would permit the government to criminally punish any reporter for publishing any "national defense information" based on the untested and self-serving conclusions of the Executive Branch. Our Committee cannot believe that the Congress will authorize any such blanket Official Secrets Act to be imposed upon the public of our nation.

The only standard which we believe would be acceptable to the working reporters and editors would be a standard that would conform the federal criminal law to the prior restraint doctrines of Near v. Minnesota and New York Times v. U.S.28 because, after all, a criminal law operates just as much as a prior restraint on publication as an injunction barring the publication itself. Therefore we would suggest that this whole section on national security, as it applies to members of the public and the press who obtain "national defense information" should only be operative if the government can prove beyond a reasonable doubt that publication of the information would pose a "clear and present danger" to the national security of the nation, or would pose a "direct, immediate and irreparable injury" to the national security of the nation.

S-1'S RESTRICTION ON THE RIGHT OF GOVERNMENT EMPLOYEES TO GIVE TO THE CONGRESS, TO LAW ENFORCEMENT AND TO THE PRESS INFORMATION ABOUT GOVERNMENT CORRUPTION, GOVERNMENT MISREPRESENTATION, ET CETERA

In addition to constructing new criminal penalties against the press for publication of any government information without permission, and for publication of any national defense information, S-1 also discourages government employees from exercising the constitutional right of all citizens to give in

27 Near v. Minnesota, 283 U.S. 697 (1931).

28 New York Times v. U.S., 403 U.S. 415 (1971).

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