It is hardly a secret that Chief Justice Warren Burger is seen as unfriendly to the press and unsympathetic to its claimed prerogatives under the First Amendment to the Constitution.
Moreover, it is hardly surprising that this should be so, since Burger was made chief justice by President Nixon, who loathed the press, especially after it uncovered the Watergate scandals.
Since Burger's appointment in 1969, the Supreme Court has made a series of decision narrowing the constitutional rights of the press, and most of the blame for that trend has naturally fallen on the chief justice. Perhaps too much so.
It is true that Burger has unreservedly joined in the rulings limiting some of the most important privileges of the press, but it is also true that Justice Byron White is the jurist who wrote the majority opinions in question, and who significantly shaped the thinking of the court in those critical cases.
White, it will be recalled, was appointed by President Kennedy, who loved the company of journalists and once aspired to be one himself. If Kennedy were alive today, there is little doubt that he would be startled by White's narrow interpretation of the First Amendment's free-press clause.
In fairness to White, however, it should be noted that, while denying some of the media's claims for protection under the Constitution, he has gone out of his way to tip the press on how to obtain those rights through legislative relief.
It is not White's fault that the divided media have responded so slowly and uncertainly to his suggestions, which were first made six years ago when the justice, in his majority opinion in the Brunzburg case, ruled that reporters had no constitutional right to resist grand-jury demands for information obtained on a confidential basis.
Like many of the court's recent First Amendment reviews, Brunzburg split the court, with the four Nixon appointees, plus White, generally forming a bare majority.
The decision also raised questions about such confidential relationships as doctor-patient, priest-penitent, lawyer-client, which, unlike the press, are not singled out for protection in the Constitution. The sanctity of those relationships rests on the common law and various statutes.
Justice White's opinion emphasized that Congress and state legislatures are not powerless to alter the result reached in Brunzburg . At the federal level, he said, "Congress has freedom to determine whether a statutory newsman's privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned . . . There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards . . . in their own areas."
In the wake of this, numerous bills were introduced in both the Senate and House to shield the press from revealing its confidential sources. Congress, backed by 3-to-1 public support, was eager to help, but so far nothing has come of its efforts, chiefly because the press could not agree on what kind of statutory help, if any, if wanted.
Meanwhile, 27 state legislatures have passed shield laws, but local and state judges have defied or circumvented them, the latest instance being the Farber case, in which a New York Times reporter was jailed for refusing to disclose his confidential notes to a New Jersey judge trying a murder case. The judge burshed aside not only the First Amendment, but his own state's shield law, and the U.S. Supreme Court refused to stay the severe contempt sentence against Myron Farber.
Shortly before that the high court, in another split decision, ruled that police can search newspaper offices and files without showing any illegal activity on the part of the paper or its employees. It shocked the press into finally realising that is can no longer depend exclusively for protection on the free-press clause of the First Amendment, at least as interpreted by the present Supreme Court.
Happily, there is now at least a growing consensus in media circles for an unthwartable federal shield statute, preempting and superseding the vulnerable state shield laws. Since the legislative course is the one suggested by Justice White, it is difficult to see how the Supreme Court could, in good conscience, nullify it.