The New York Review of Books

To the Editors:

With Ronald Dworkin (NYR, October 26) I agree with the result in the Farber case, but I cannot concur that one reaches that result by so simple a process as characterizing one of the opposing arguments as policy and the other as principle.

First of all, it is not at all clear that the “strict rules of criminal procedure” are justifications of principle, even accepting the distinction between principle and policy. If the maximum incidence of conviction of the guilty is an argument of policy, if the minimum incidence of conviction of the innocent is an argument of principle, and if policy must yield to principle except in cases of catastrophe (whatever that is), then we ought never to convict anyone as long as there is even the most miniscule possibility that such action might be erroneous. Since such a possibility, however remote, is always present, Dworkin’s thesis would compel us to dismantle the entire notion of law enforcement. Since he clearly would not advocate such a result, he must concede either that principle can, with proper weighting, yield to policy, or that the strict rules of criminal procedure are themselves based on policy, a policy incorporating the relative frequency of two types of errors that society is willing to tolerate.

Equally, it is not clear that the arguments of Myron Farber are arguments of policy and not of principle. There may be a political or moral (as opposed to constitutional) right to say what you wish, but if we are concerned only with the interests of the speaker then such a right would equally support a right to do what you wish. I can express myself through speech, but I can also express myself through numerous forms of conduct having no communicative intent or effect. A right to freedom of speech, as opposed to a general right to personal freedom, becomes meaningful only if we recognize the instrumental values of communication, whether to approach truth, to identify error, or to serve as a component of democratic decision-making. And if the right to speak is instrumental to other values, then Farber’s free press claim is not fundamentally different from the free speech claims of others. If the only free speech claims that can under Professor Dworkin’s analysis prevail automatically over considerations of policy are those that are based on the moral rights of the speaker, then it is hard to see why there is such a strong presumption in favor of allowing the publication of the Pentagon Papers or the writing of Frank Snepp. We protect, or should protect, these communications not nearly so much because Snepp or the New York Times have a right to say them as because our society has a political right to the most unrestricted communication possible of political information and argument. Seen in this light, Farber’s claims are quite similar to those in other free speech cases, although that does not mean that they necessarily should prevail in this case.

The problem is that the distinction between principle and policy, while arguably valid, has little relevance to the particular rights at issue here. Both the right to free speech and the right to a fair trial are based so much on policy, even at the level of political morality, that a balancing is inevitable. This is even more apparent once we recognize that Professor Dworkin properly distinguishes between political rights, based on deeper principles of political morality, and constitutional rights, which may but need not be based on those same principles of political morality. The First Amendment may be based on the search for truth, as argued by Holmes and Brandeis, or on the prerequisites of democratic government, as argued by Alexander Meiklejohn, or on individual self-expression, as argued by Professor Dworkin. But his position here is not only that this last reason is part of the First Amendment, but also that it is the only part. There is nothing either historically or philosophically to suggest such an interpretation. And as long as the First Amendment protects speech instrumentally, Myron Farber’s arguments cannot so easily be subjugated to other political rights. What defeats Farber’s position is not that his arguments are only arguments of policy, but that his strong policy arguments are met in this case by even stronger ones.

Frederick F. Schauer

Marshall-Wythe School of Law

College of William and Mary

Williamsburg, Virginia

To the Editors:

In his discussion of “The Rights of Myron Farber,” Ronald Dworkin has lost sight of the rights of writers. He construes the problem as “not the difficult question of how to compromise competing rights” but as the easily decidable question of the “efficiency” of reporters whose work may be “valuable to the public” versus the right of a defendant to a fair trial. In construing the problem this way he ensures his conclusion (given the priority accorded to principle over policy) but his construal of the problem is unpersuasive.

There is no more reason to think the rights of reporters can only be justified in terms of public utility than to think the rights of others can only be justified this way, and Dworkin quite rightly grounds rights on principle, not on what he calls policy. His conception of “the right of free speech and publication,” however, is less than satisfactory. This right can surely not be reduced to a mere absence of censorship. Dworkin’s conception overlooks how reporters actually work. What a reporter does in inviting, persuading, coaxing, encouraging, enabling another person to talk is often a delicate and subtle activity. To be able to promise confidentiality to the person being encouraged to talk may be completely crucial to the process. In the moment of conversation, a reporter must be able to offer to take upon himself or herself from the person considering whether to speak or not speak the burden of pressure for further disclosure and further information which may result from this initial opening, pressure which the person speaking may greatly fear. And the reporter must be able to engender trust that any promises of confidentiality that are made will be steadfastly honored. A judicial decision that the most a reporter would be able to say would be “I will keep this discussion confidential as long as no court asks me about it” would have a devastatingly chilling effect on the extent to which reporters and writers could exercise their rights to do their work and to maintain the freedom of the press assured by the First Amendment.

A strong case can thus be made that information created within the bounds of a reporter’s obligation to honor his promise of confidentiality should not be available to the courts. The rights of reporters to promise confidentiality and their obligations to honor such promises are clearly matters of principle, not of general welfare. Respecting reporters’ rights to keep to themselves the words of persons who would otherwise not have spoken to them need have nothing to do with policy, despite what may have been said in some discussions of the Farber case or in his defense.

Whether such rights of reporters should yield to the right of a defendant to a fair trial in certain circumstances is a question that must then be faced. And, as Dworkin acknowledges, it cannot be answered by referring to recent judicial decisions specifying the present status of legal rights on the subject.

At times Dworkin seems to recommend a social order in which the judicial segment of government would be clearly supreme. Even if he saw the Farber case as a matter of competing rights, he would presumably continue to uphold Judge Arnold’s decision against Farber. However, others who take moral rights seriously will be more wary of the courts, as they are of other concentrations of power and authority in society. And wise judges may ultimately recognize the validity of arguments that not even judges should be permitted to invade the private notes of reporters and writers.

Virginia Held

Department of Philosophy

City University of New York

New York, New York

To the Editors:

In his brief against Farber, Ronald Dworkin says everybody else has overlooked “an important distinction” as between principle and policy. The right of The Times to print the Pentagon papers is a matter of principle, he says, while its right to protect its sources is merely a matter of policy, hence dispensable.

Professor Dworkin’s important distinction may entertain philosophers, but it loses clarity as soon as it is exposed to real life. (Is that what Justice Holmes meant when he warned that “General propositions do not decide concrete cases”?)

The Times‘s right to print the Pentagon Papers would be academic if it didn’t have the papers. The reporter who sought them and the anonymous informant who provided them were both relying upon the historic right of all free men to denounce wrongdoing without fear of retaliation.

To say that we have a right to investigate and expose but not to protect our sources is academic nonsense.

The issue in Farber is not a special privilege claimed by the press but the right of every individual to speak in security to a reporter as to a priest or a lawyer. It is the right of the public also to receive information so provided to the press.

Space is not available for a detailed reply to Professor Dworkin’s brief. But I do not believe that the growing attack on reporters stems from rational considerations.

Clearly liberalism is in retreat for the moment. Much of the middle class has been panicked by the bad news of recent years, and it blames the media for it. Some liberals who flirted with revolution in the Sixties now embrace any occasion to rejoin the right-thinking. Thus in recent years The New York Review has raised the menace of investigative reporting, reviled Dan Schorr, been reborn with Jimmy Carter, sought to prove that Alger Hiss deserved his fate, and now defends the jailing of a reporter for refusing to betray his sources.

Well, the pendulum will swing back—at least I hope so. Meanwhile, a word to liberal commentators: those who are admittedly confused about the Farber case are under no compulsion to share their confusion with the public. At a time when a reporter faces the choice of jail or dishonor, the best a mixedup colleague can decently do is shut up.

John L. Hess

New York City

Ronald Dworkin replies:

Dr. Jascalevich has now been acquitted, and Myron Farber has been released from jail. But the issues of moral and legal principle that Farber raised remain of great importance. Professor Schauer, in his thoughtful letter, agrees with my conclusion that Farber had no right to withhold his notes from Judge Arnold. But he is not satisfied with my argument, which relied on the distinction I drew between arguments of principle and arguments of policy. I believe that distinction to be of general importance in political and legal theory, and have discussed it at considerable length, and tried to answer certain objections, elsewhere.¹ It might be helpful now, however, to expand the account of the distinction that I gave in my article on the Farber case, though I would ask readers who remain skeptical to consult the longer discussions.