Two weeks ago Myron Farber, a reporter for The New York Times, surrended himself to authorities at the Bergen County Jail in Hackensack, N.J. "I'm not going to jail because I want to go to jail," he told reporters as he walked into prison. "What I'm trying to do is uphold the Constitution of the United States. I'm going to jail for what I believe to be the public interest.
Nothing guarantees wider news coverage than the jailing of a reporter in a freedom-of-the-press case, and Farber's certainly has been no exception. He has been on national television standing in his cell while the prison doors clanked shut. The network talk shows and the newspaper columns have been filled with impassioned defenses of his actions.
Farber has become the latest of the press cause celebres, a journalist fighting for all those things journalists cherish - the peoples' right to know, the protection of a reporter's confidential sources, the resistance of government intrusion into the gathering of news and publishing process. The Constitution means exactly what it says, and the First Amendment stands supreme: thus, the arguments and the press case repeatedly made for him.
All terribly noble-sounding, all embracing the highest principles of a free press. And, suddenly, now all not so simple, and not as things first appeared.
The Farber case has taken a turn that, at the least, brings embarrasment if not dismay to the press. Far from being the detached, independent reporter of legend, operating without self-interest and motivated only by a search for the truth, Myron Farber has been shown to have a large stake in this case. He stands to profit handsomely from it. The more publicity, the greater the potential financial return. That old, uncomfortable question about money and the media - and how each affects the rights of individuals in a criminal trial - has arisen again.
No press freedom principle has been debated more vigorously in recent years than that of protecting news sources. As the struggle between media and government has intensified in the post-Vietnam/Watergate era, and the inevitable constitutional conflicts between guaranteeing a free press and a free trial have become more complicated, the issue of were revealed as sources, properly would be reluctant to give information to the press. The vital role of the press in investigating wrongdoing in public news sources has assumed paramount importance.
Without an assurance of confidentiality in critical cases affecting the public interest, it's claimed again and again, news sources would "dry up." Citizens whose careers - or even their lives - could be in jeopardy if their names and private places would therefore be severely weakened.
Many news organizations and numerous journalists (including this one) have made these arguments in court cases over the last several years; and have submitted sworn affidavits to buttress their views.
At first blush the Farber case seemed destined to become a classic in this regard. Here was a reporter whose painstaking investigations had resulted in the opening of a criminal case and the subsequent murder indictment. Dr. Mario E. Jascalevich was indicted after a series of articles by Farber in The Times suggested that a "Dr. X" had murdered patients at a small Jersey hospital by injecting them with a paralyzing drug, curare. Jascalevich is now on trial in that murder case; there would have been none had it not been for Farber's reporting, and for The Times publishing what he found.
The doctor's defense lawyer served subpoenas on Farber and The Times, requiring them to turn over all the reporter's notes, records and memoranda in connection with the case. After the trial judge ordered Farber and his paper to comply, they refused. Freedom of the press and the First Amendment: they were going to protect their confidential news sources, even if it meant Farber's going to jail and the paper paying a heavy financial penalty for a contempt of court citation.
In addition to the customary arguments about the need to maintain confidentiality of sources and threats to press freedom, an intriguing new one has been made in this case. The New Yorker magazine argues the Farber case concerns not only freedom of the press, but freedom of thought. Farber's notes made in preparation of his articles are really extensions of his thoughts in this view.
"In groping behind published works for information," The New Yorker says, "the government does more than cause writers the embarrassment of seeing their unpublished drafts dragged before the public; it lays hands on a writer's thoughts. If prior restraint (prevention of publication) has a chilling effort on free speech, then oblgiatory disclosure of notes (enforcement of publication) has a chilling effect on free thought."
That's a provocative argument, and well worth pondering in future - but it now bears no relevance on the Farber case.
It turns out that Myron Farber tried to sell a book on the "Dr. X" case to Doubleday, but the proposal was rejected. Once Dr. Jascalevich was indicated, however, doubleday then gave Farber a contract. Farber received a $75,000 advance. He has been working on the manuscript, has turned over some seven chapters to his book editor, and there are possibilities of a movie deal in the works.
When Farber appeared in court to present his latest a petition for release from jail, the judge sharply questioned him about his book. While he was refusing to provide his notes on the case to the defense lawyers, he was "profiting handsomely" from the murder trial through his book, the judge said. He also suggested that Farber had a Financial stake in seeing the doctor convicted. "He has it in his power, perhaps . . . even to obtain an acquittal for Jascalevish," the judge said. "Yet, ironically, if he obtains an acquittal for Jascalevich, the book goes down the drain."
You don't have to accept the judge's reasoning to concede that all those high-sounding statements about journalistic integrity and courageously protecting news sources in defense of the Constitution now appear compromised. It's OK to sell the material to a publishing house, but not to turn it over to a defendant in a murder trial.
Myron Farber has a right to his manuscript. He has a right to refuse disclosing his sources. He has a right, even, to be wrong. But he does not, in this corner anyway, have a right to claim special moral privileges in this particular case.
What he's done, wittingly or otherwise, is lend credence to the belief he's not only interested in protecting his news sources - he's also protecting his financial interests. That perception affects more than Farber and the Times; it concerns the entire press.