HOW MUCH SHOULD people be compensated when their freedom has been abridged? It's a hard question, and one that the U.S. Court of Appeals and a federal district judge here have just handled in very different ways.
The appellate court took the proper approach, we think. It had been asked to review damage awards in two cases involving peaceful anti-ear demonstrators whose First Amendment rights of free speech, assembly and petition had been violated by police. The court applied two principles. On the one hand, constitutional liberties are so fundamental that violations should not be treated as trivial. On the other hand, monetary damages should be reasonably proportional to the actual harm incurred.
In one case, a jury had granted $7,500 apiece to some 1,200 people wrongfully arrested on the Capitol grounds in May 1971. The appellate panel said that judgment was far too high, especially in view of the fact that most of the program had been completed before the mass arrests were made.
In the second case, a judge had awarded $100 to each of 27 Quakers improperly arrested on the side-walk outside the White House in April 1971. That figure, the appellate court decided, was too low. The trial judge's principal justification for such "limited" damages was that the Quakers had been seeking publicity anyway and had simply gotten more of it than they had planned. Rejecting that view, Circuit Judge Harold Leventhal wrote that the right to demonstrate "warrants more than token acknowledgment." Without being "extravagant," he said, courts should take "a reasonably spacious approach."
Without prescribing dollar amounts, the court has put these two cases in much better perspective and set down reasonable standards for trial judges and juries to apply. In contrast, there was nothing spacious about a third recent decision, in which federal District Court Judge John Lewis Smith Jr. ruled that former President Nixon, John Mitchell and H. R. Haldeman should pay Morton H. Halperin and his family a total of $5 in compensation for having unlawfully tapped the family's telephone for 21 months from 1969 to 1971.
Last winter Judge Smith had ruled that the protracted, indiscriminate, warrantless surveillance violated the Halperins' Fourth Amendment rights. The other day, however, the judge wrote that Messrs. Nixon Mitchell and Haldeman had not shown a "wanton, reckless or malicious disregard" of the Halperins' rights. The family had not suffered any tangible loss of jobs or income. Moreover, Mr. Halperin need not fear any future surveillance because "Mr. Haldeman and Mr. Mitchell are in prison" and "Mr. Nixon is in voluntary seclusion" and cannot regain the presidency.
All this makes the wiretapping sound about as intrusive and purposeful as an accidential trespass on someone's lawn. It was more than that, of course. It was an lawfully act committed by the nations top officials. And it was no less deliberate because their major offense, according to Judge Smith's original ruling, was one of omission: They failed to stop the surveillance after it had entirely lost any national-security justification at all. If the judge is suggesting that officials should not be held liable for wrongs resulting from their passivity, his opinion is troubling indeed. And it is even more myopic in its view of the deterrent purposes of compensation awards. The point should be not just to keep the same people from doing the same things again, but also to discourage any official's violations of citizens' rights. That goal is hardly served by such a ludicrously low award.