The Rights of M.A. Farber: An Exchange

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.

Arguments of policy are collective justifications, which point to some overall benefit for the community as a whole, and concede that the special benefits that particular individuals receive are accidental. Congress recently voted, for example, to lower the tax rate on capital gains. It justified that decision by arguing that the community will be better off as a whole because investment will be stimulated. Those who will benefit most, of course, are those who sell investment property at a profit. But they are selected for special advantage, not because it is thought fair that they should keep more of what they earn than someone who works for a living, but because it is necessary to give them a special profit to induce them to invest—or so Congress argued.

Arguments of principle, on the other hand, argue that some person or group is entitled to some advantage or protection whether or not the community as a whole actually loses thereby. The right of an innocent man not to be convicted and punished for the crime he did not commit is based on an argument of principle: we believe that framing an innocent man would be wrong even if, for some reason, the community would benefit from doing so, even in the very long run.

If the community recognizes a particular argument of principle, therefore, it has recognized that some sort of constraint on individuals is wrong even if it is in the general interest to impose that constraint. That is the force of an argument of principle. Suppose I am right that the only arguments in favor of the privilege Farber claimed are arguments of policy, to the effect that the community as a whole will benefit. Suppose I am also right that the traditional right of an accused criminal to material that might aid his defense is a matter of principle, because it would be wrong to deny him that material even though the community would benefit by withholding it. Then it is senseless to speak of “balancing” the reporter’s privilege against the defendant’s right. The balance has already been struck once it is recognized that the argument for the defendant is an argument of principle.

Of course, if the effect of enforcing the defendant’s right in some circumstance is not merely a marginal cost to the general welfare, but is some very serious injury to others—some clear and present danger—then it is not senseless to argue that the right must yield to the emergency. Recognizing a right commits the community to the possibility of suffering some cost in the general interest, but not necessarily a very dramatic cost. That depends on how important the right is. It is implausible to suppose, however, for the reasons I gave, that Judge Arnold’s order threatened anything like a serious risk to the public’s welfare. Farber and the Times argued only that there are strong reasons to think that the community gains on balance if reporters can protect their sources. It is precisely that kind of marginal and speculative gain that must yield to an argument of principle.

Professor Schauer argues, in his last paragraph, that all arguments made under the First Amendment are arguments of policy. If that is correct, then my argument would prove too much, because it would prove that free speech must always yield to competing rights based on principle. But surely that is not correct. I do not deny (contrary to his statement of what I think) that some arguments that have been made under the Amendment are arguments of policy. I said that the “core” of the First Amendment, including the right of political dissent, is a matter of principle. I explicitly noted, however, that at least four Justices of the Supreme Court said that a reporter’s privilege not to disclose his sources in certain circumstances, though a matter of policy, had some constitutional standing under the Amendment.

But if the First Amendment can be used to protect policy as well as principle, it is all the more important to be clear whether any particular appeal to the Amendment is a matter of policy or of principle. It would be a great mistake, for example, to treat some matter that lies within the core of the Amendment, like the right of protest, as based on policy, because that would invite Congress and the courts to “balance” that right against other constitutionally protected policies, including the power of the federal government to do what it deems necessary and proper to wage war effectively.

Schauer also argues that I am wrong in taking the traditional right of a defendant to a fair trial to be a matter of principle. He says that Jascalevich’s claim is a matter of policy too, so that the two claims must be balanced against each other after all. He argues that if we once concede that everyone accused of a crime has a right to a fair trial, we shall have to concede that everyone has a right to a foolproof trial, and, since no actual trial can be foolproof, it follows that everyone has a right not to be tried at all, which is absurd. But this reductio ad absurdum is based on a mistake. If we stopped prosecuting anyone for crime, then the community would suffer a kind of chaos that almost everyone would regard as catastrophic, and the rights of the weak and vulnerable to some measure of protection by the state would be forfeit. Of course, we cannot abandon law enforcement altogether. But it hardly follows that we should acknowledge no right to procedures that protect the innocent at less dramatic costs to law enforcement efficiency.

Schauer makes yet another argument. In his last paragraph he concedes that Farber’s argument is an argument of policy. But he suggests, earlier, that it might also be considered an argument of principle, not because reporters are entitled to protect sources, but because the public at large is entitled, as a matter of principle, to the information that reporters can discover only if they do protect sources. He draws that conclusion from a general theory which supposes that all First Amendment rights, including those that I said lie in the core of the Amendment, belong not to the speaker but to the audience.

Under that theory the rights of Nazis to march in Skokie, for example, are really the rights of the citizens of Skokie to hear what the Nazis will say, in spite of the fact that these citizens, perhaps unanimously, tried to stop the Nazis from speaking. I discuss that general theory at pages fourteen to sixteen in The Philosophy of Law,² and I will not repeat the reasons for rejecting it I give there. The argument seems particularly awkward in this application, however, because it supposes, not that Farber has a right to publish what he believes important, but that the public has a right that he publish what it wishes to know. That is a much more serious constraint on his editorial responsibility and judgment than Judge Arnold’s order. Surely some members of the public wish to know the names of Farber’s informers and details of his conversations with them, and it is unclear, under Schauer’s argument, why they have less right to know this than others have to know the information Farber discovered by promising confidentiality.

Professor Held, who was formerly a reporter, argues a position much stronger than that taken by Farber and the Times. She believes that any promise of confidentiality given by a reporter must be protected in court because such a promise “may be crucial” in eliciting information. She says that a guarded promise, that the information will not be revealed unless a judge rules that it is important to the defense, would have a “devastatingly chilling effect” on reporters’ work and on their freedom of the press. That seems hyperbolic. As I pointed out, the press has never been protected in the broad way she would like, but reporters are nevertheless rightly proud of their ability to expose crime and corruption. I should add however, that I am aware that the Farber case will be used as a precedent by defense attorneys in other cases, who will ask to examine newspaper files for reasons of delay, or confusion, or other reasons that have nothing to do with any hope of useful information, and that these newspapers may therefore be harassed for no proper purpose. I suggested that since Farber’s role in the Jascalevich case was unusual, the argument in favor of the defense’s right to examine newspaper files, without some showing of their relevance, would be much less strong in most other cases.

Mr.Hess says that the right of free speech that I recognize, which is the right of everyone, including reporters, to publish what they wish free from official censorship, would be “academic” without the right to get the information they wish to publish. Therefore, it is “academic nonsense” to suppose that reporters have a right to expose corruption but not a right to protect their sources. I agree that if reporters were systematically prevented from collecting information that might be critical of government, then the right to publish whatever they could collect would have very little value. We might well say that a government that disabled reporters in that way did not recognize their right of free speech even if it practiced no direct censorship.

But it hardly follows that a right of free speech is valueless if there are any constraints at all on the means that a reporter may use to discover information. It is, as I said, entirely speculative whether the Farber decision, if it stands as a precedent, will have any significant impact on the ability of reporters to gather information, beyond the constraints already imposed by prior law, including Branzburg v. Hayes, which I discussed. I doubt that Mr. Hess, who is himself a reporter, would say that freedom of the press was only “academic” during the Watergate years, which followed that decision.

Hess adds two further arguments. One is the argument mentioned by Schauer, which is that the public has a right to receive all the information that an informer would provide only if promised confidentiality. The second—even more extraordinary—is that informers have what he calls a “historic right…to denounce wrongdoing without fear of retaliation,” and a right “to speak in security to a reporter as to a priest or a lawyer.” Neither our law nor our political tradition has recognized either of these supposed rights. We do not believe that someone who accuses another anonymously can hide behind that anonymity, for example to avoid a defamation suit. Nor have we yet decided to treat reporters like lawyers or priests. The latter have a duty of silence, flowing from the right of people to adequate representation and to freedom of religious practice. Does Hess really mean that a reporter has a duty to repeat nothing that anyone tells him, whether the reporter has expressly promised confidentiality or not? What happens the to the public’s alleged right to know? Indeed what happens to freedom of the press?

The remainder of Hess’s letter is murky. As part of a general complaint that liberals are flocking to the right, he says that I seek to “defend the jailing of a reporter for refusing to betray his sources.” It is, I think, mindless to detect important political trends from a vaguely identified and highly selective list of articles written by different authors in The New York Review, with no attention to the character of the arguments they make. But it is even worse to misrepresent these articles in doing so. I was explicit in condemning the jailing of Farber. I said that he deserves nothing but gratitude for his readiness to make personal sacrifice to provide a test of principle. Is editorial integrity also a piece of “academic nonsense”?