Dr. Mario Jascalevich is on trial in New Jersey, charged with the murder, by curare poisoning, of a number of hospital patients in 1965 and 1966. His indictment was the direct result of a series of articles about the deaths of these patients written by a reporter for The New York Times, Myron Farber. Jascalevich’s lawyer. Raymond Brown, asked the trial judge to order Farber and the Times to turn over to the defense all the notes, memoranda, interview records, and other material Farber compiled during his investigation. Judge Arnold ordered. instead, that all such material be delivered to him, so that he himself could determine whether any of it was sufficiently relevant that it should be given to Brown. Farber refused this order, and was jailed for contempt, though he has since been released. The Times at first refused to deliver any material in its control, and was also cited for contempt, and forced to pay large daily fines. It has since handed over certain files, but the judge who imposed the fines, Judge Trautwein, charges that these files have been “sanitized,” and do not cure the contempt.
Farber and the Times appealed to the New Jersey Supreme Court (whose decision against their appeal was announced just as this issue of The New York Review went to press). They claim that Judge Arnold’s order was illegal on two different grounds. They argue that the order violated the New Jersey “Shield Law,” which provides that in any legal proceeding a newman “has a privilege to refuse to disclose” any “source” or “news or information obtained in the course of pursuing his professional activity.” They also argue that, quite apart from the Shield Law, the order violated their rights under the First Amendment to the US Constitution which provides for “freedom of the press.”
Each of these legal arguments is controversial. It is arguable that the Shield Law, in so far as it grants newsmen a privilege not to disclose information which might tend to prove an accused criminal innocent, is unconstitutional because it denies the accused a right to a fair trial guaranteed by the Sixth Amendment. If so, then Judge Arnold acted properly in asking that Farber’s notes and material be furnished to him privately so that he could determine whether any of them might tend to support Dr. Jascalevich’s innocence.
The First Amendment argument is weaker still. The Supreme Court in a 1972 decision. Branzburg v. Hayes. denied that the First Amendment automatically grants newsmen a privilege to withhold sources and other information in legal proceedings. Four of the five majority justices stated categorically that newsmen have no special privilege under the First Amendment beyond those of ordinary citizens. Mr. Justice Powell agreed that the reporters in the cases the Court was considering did not have the privileges they asserted. But he added, in a short and cryptic concurring opinion, that in some circumstances the First Amendment might require courts to protect newsmen from …