Worried and Without Friends at Court

By Thomas Griffith

Newspaper editors have a fear that they aren't admired enough. John Hughes, who retired this month as editor of the Christian Science Monitor and last month completed a term as president of the American Society of Newspaper Editors, warned his colleagues in a farewell address that "our profession . . . isn't currently in high repute. The polls indicate that our credibility with the public is lower than that of many other professions." There are three things wrong with that statement. Newspaper editing isn't a profession, its public standing is about as high as it ever is, and polls on such nebulous questions chiefly reflect the current soggy miasma of public mistrust about all American institutions.

But the editors' self-consciousness about their status is considerable and is having some curious effects. One is the way the Chicago Sun-Times lost a Pulitzer Prize that the nominating jury had recommended it for.

For five months, reporters for the paper had clandestinely operated a Chicago bar called the Mirage tavern, gathering notes on building and fire inspectors as they asked for illegal side payments. Street-wise in a machine-dominated city, Editor James Hoge had lawyers meticulously instruct his reporters in how to avoid committing entrapment. In the past, such Front Page-style enterprise has consistently won Pulitzers. As deception, it is not all that different from the confrontation theater that often gives CBS's 60 Minutes its liveliest episodes.

But one of the Pulitzer judges, Eugene Patterson of the St. Petersburg Times, was worried about changing moral standards. Newspapers become censorious when Government agents misrepresent themselves, he noted, and are generally more sensitive to invasions of privacy. (Patterson conceded that he has at times authorized his own reporters to disguise themselves, and reserves the right to do so again.) As Patterson and his fellow judges groped their way through these ethical thickets, James ("Scotty") Reston of the New York Times was worried that they might be getting too moralistic. So he volunteered a distinction between pretense and deceit. Reporters often pretend to know more than they do, he said, to get a source to tell the full story; that's O.K. Deceit is the more elaborate subterfuge the Sun-Times practiced. Having ingested this bit of Talmudic Calvinism, the judges gave the Pulitzer to someone else.

Another curious effect of the editors' new self-consciousness is that some of them have grown sensitive about how often the press cries wolf over the First Amendment. It's no secret that Nixon's Gang of Four on the Supreme Court bears little love for the press; an even deeper animus seems to reside in President Kennedy's appointee, Byron White. (He's not grateful either when newspaper accounts invariably recall that Mr. Justice White was once better known to you and me as Whizzer White, football star.) But each court attempt to redefine the press's responsibility in libel suits or criminal trials isn't necessarily tearing the First Amendment to tatters, neither are "American courts on a rampage" against the press, as former CBS Correspondent Daniel Schorr argues. Critics often lament court decisions for their "chilling effect"--a mealy phrase that should have gone out with the McCarthy era, when the normal good sense of timorous people was too easily chilled.

Nowhere is editorial ambivalence more apparent than on the question of supporting the Progressive magazine in its attempt to publish an article and chart showing how a nuclear bomb works. The magazine is now under federal injunction not to publish its report, an unprecedented case of prior restraint that is troubling to all editors. Overcoming their initial misgivings, the board of directors of the A.S.N.E. voted unanimously to support the Progressive's appeal. With somewhat less agonizing, the American Society of Magazine Editors last week announced that it too would back the appeal.

But what troubles the newspaper editors came out clearly in a conference of journalists, lawyers and scientists assembled in mid-April by the Alicia Patterson Foundation to discuss the case. Several top scientists present agreed that the Progressive article could help such nations as Taiwan, South Africa, South Korea and Argentina to develop a bomb more quickly. No editor at the conference said he would have printed the article. Nor were editors impressed by Editor Erwin Knoll's stated motive to attack secrecy as unworkable and thus somehow to frustrate the nuclear arms race. Couldn't the point be made, they wondered, without illustrating the secret in question?

Instead of publishing the article on his own responsibility, as editors normally do, Knoll submitted it to the Government first. Far from being eager to throttle the press, the Government ignored several letters and persistent phone calls from the magazine before taking action against it. Knoll explained that his attorney had warned him that the Atomic Energy Act is so broadly written that editors can be prosecuted not just for printing Government secrets but also for publishing information that the Progressive says it gathered entirely in the public domain or through interviews. Knoll told the editors: "I now regret having followed our attorney's advice." To which Washington Post Editor Ben Bradlee replied: "Now, because of some chicken lawyer . . . you've got me cornered into supporting you--reluctantly. I do it with about as much enthusiasm as I would Larry Flynt and Hustler."

One ground for the Progressive's appeal is that prior judicial restraint can be imposed only when publication would "surely result in direct, immediate and irreparable damage to our nation." These are tough standards to meet before a court can enjoin the press. They were laid down in the Pentagon papers case--and by members of the very Burger Court, Justice White concurring, that so many editors believe is hopelessly biased against the press.

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