An End to Fishing

Earl Caldwell's challenge came at a time when the U.S. press community felt that Government investigators were using subpoenas far too liberally as a means of fishing through reporters' notes on the off chance of finding evidence of crime. Caldwell, a San Francisco-based black reporter for the New York Times, had been subpoenaed last Feb. 2 and ordered to appear before a federal grand jury investigating activities of the Black Panthers. He was directed to produce tape recordings and notes taken during Panther interviews. Caldwell not only objected to producing the material, he objected to appearing at all.

Caldwell had become a specialist in news concerning the Black Panther Party. He was received at first with distrust, but his respect for confidences had finally won him the trust of party members. That trust would evaporate if he were to go behind the closed doors of a grand jury, claimed Caldwell. The Government disagreed, asserting that "the Black Panthers depend on the mass media for their constant endeavor to maintain themselves in the public eye and thus gain adherents and continued support."

Last week the U.S. Court of Appeals for the Ninth Circuit agreed with Caldwell. Such fishing expeditions for unspecific information, said the decision, would turn a reporter "into an investigative agent of the Government." The decision applied only to Caldwell, in the light of his special relationship to the Panthers and the secrecy of the grand jury proceedings. But the Ninth Circuit Court has at least limited the scope of the Government's investigative power. Not binding on any other circuit court, the decision nevertheless sets a powerful precedent.

As for Earl Caldwell, he could still be subpoenaed if the Government could succeed in proving "compelling need" for his tapes and notes or if they could think of any information Caldwell might have apart from his privileged conversations with the Panthers. At the moment, though, the decision is a triumph for Caldwell, for Constitutional Lawyer Tony Amsterdam, who represented him--and for press freedom. Says Caldwell: "We got 100% of what we asked. I could not have continued as a journalist if I knew I'd have to submit to what the Government has been demanding."

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