Starr struck.

Graves, Florence George

The Kenneth Starr assailed by the Clinton administration as an agent of a vast right-wing conspiracy is the same Kenneth Starr who was hailed in 1987 by many journalists and media lawyers as a savior of investigative reporting.

While tens of thousands of words have been written about Starr in recent months, almost none have reflected the prominent role he played in defending press rights during the 1980s, when many conservatives and business interests, determined to rein in what they perceived as post-Watergate media excesses, declared war on journalists.

As a federal appeals court judge, Starr wrote two influential decisions favoring the media. One involved a libel case against the Washington Post filed by Mobil Oil Corp. President William Tavoulareas and his son, in which Starr endorsed the view that aggressive reporting serves "one of the highest functions of the press in our society." The second concerned a libel suit against columnists Rowland Evans and Robert Novak, in which Starr upheld broad protection for opinion writing.

"I think there's no question that Judge Starr `got it' in terms of understanding the importance of the press under the First Amendment and the First Amendment protection that the press should have from libel and related claims," says media lawyer Lee Levine.

A decade later, however, a different, disturbing picture of Starr's relationship with the media is emerging. In a stunning shift, Starr, in his role as the independent counsel charged with investigating Whitewater-related charges, has staked out territory that several prominent media attorneys believe is seriously undermining a free and independent press.

There are also indications that some media executives, like willing executioners, are not aggressively fighting Starr's encroachment on First Amendment rights as he investigates President Clinton.

Floyd Abrams, one of the country's most prominent defenders of the First Amendment who made his name in the Pentagon Papers case, says Starr and other independent counsels investigating members of the Clinton administration are creating a "subterranean" and "secret body of law" as a result of their "persistent subpoenaing of journalists" to produce materials, including notes and broadcast outtakes, in a way he believes no previous independent counsel has done.

The same Ken Starr who gave a ringing endorsement of investigative journalism is now, according to Little Rock media attorney Philip S. Anderson, trying to turn investigative reporters into "agents of the prosecutor's office."

Almost all legal papers involving subpoenas issued by Starr to news organizations are under seal. However, a few pleadings and the judge's decision in a case involving ABC were unsealed, providing a rare glimpse into the "secret body of law" that concerns Abrams. In these unsealed documents, Starr and U.S. District Court Judge Susan Webber Wright, who is overseeing the Whitewater grand jury, endorsed what some media attorneys say are alarming legal positions. If widely accepted, their interpretations of the law would emasculate journalists' First Amendment rights in reporting on issues relating to an independent counsel probe.

First, Starr took a hard-line position, saying that the Supreme Court has effectively ruled that "the First Amendment does not establish a journalist's privilege" to protect notes and sources in grand jury proceedings. And, ABC argued in its reply brief, Starr was taking the position that grand juries "must be accorded virtually unlimited access to press materials," unless a journalist could prove the independent counsel was acting in bad faith.

Perhaps more shocking, Wright effectively ruled that the long-standing Justice Department guidelines, which make it very difficult for federal prosecutors to subpoena journalists or their notes, do not apply to independent counsels. Enacted in 1970 after fiery confrontations between reporters and then-Attorney General John Mitchell, the guidelines were intended to help ensure press freedom by protecting journalists' reporting from the "prosecutorial power of the government." Sen. Carl Levin (D-Mich.), who co-sponsored the reauthorization of the independent counsel law three times, says the measures intended that independent counsels follow the guidelines. Therefore, Wright's interpretation completely contradicts congressionally mandated restraints on an independent counsel's power.

Neither Wright nor Starr would discuss the issue. Debbie Gershman, Starr's spokesperson, says that federal rules prohibit him or anyone from his office from discussing subpoenas.

Why are the subpoenas such a serious matter? If journalists know they may be asked to testify about unpublished material, perhaps being forced to choose between identifying a confidential source and going to jail, they may be discouraged from doing tough investigative stories. Even worse, if reporters are seen as potential arms of law enforcement, sources who may have important information about government or corporate wrongdoing will be far less likely to cooperate.

Because most of the transactions have been done in secret and some media organizations only reluctantly acknowledged the subpoenas, it is impossible to determine how many subpoenas have been issued and exactly what kinds of records have been turned over to Starr.

Some subpoenas of media records have surfaced, including one to ABC for outtakes of an interview with Susan McDougal; another to William Morrow and Co., a book publisher, for materials related to a book being written by Webster Hubbell; and two to television stations issued after the Monica Lewinsky story broke. In the case of ABC, Judge Wright ruled the outtakes had to be given to Starr. In the case of Morrow, Starr backed off after an aggressive PR and legal fight by the publisher.

However, interviews with several First Amendment attorneys indicate that this handful of subpoenas is merely a symbol of a much more pervasive problem. Abrams says he knows of five or six news organizations whose journalists' notes or outtakes have been subpoenaed by Starr or other independent counsels investigating members of the Clinton administration. The subpoenas he knows about have all been directed at national print or broadcast news organizations and have never been made public, he says.

Abrams says he cannot reveal the news organizations involved because "I've learned these things in confidence." He is not personally involved in any of the cases, he says, "but I have seen the pleadings and read the opinions," which are under seal.

Abrams emphasizes that Ken Starr is not alone. He is part of a much larger "systemic problem with special prosecutors who have more and more come to feel that there are almost no limitations on what information they can obtain and from whom they can obtain it." He believes "special prosecutors as a group have come to think that this is open season on the press as a source of information for them. And I think it is important for the press to do its best to resist."

Abrams is known as one of the nation's leading constitutional lawyers. He came onto the national scene when he successfully represented the New York Times in the Pentagon Papers case after the newspaper published articles in 1971 based on classified government documents analyzing the development of the Vietnam War. Steven Brill, founder of The American Lawyer magazine and Court TV, once called Abrams "one of the few lawyers whose reputation is actually matched by reality."

Abrams is deeply troubled for two reasons. First, he says, "there seems to be an explosion of subpoenas." Second, everything has been done "in secret. No one was allowed to talk about it. Everything is in a grand jury context with papers filed under seal and the information sought under seal, objections made under seal, briefings under seal, and decisions which only counsel can see and which cannot be cited thereafter because they're issued under seal."

Abrams doesn't know whether any of the outtakes or notes that have been turned over to prosecutors identify confidential sources "because I don't know what the journalists had." In the cases he knows about, he believes media organizations were specifically told by the independent counsels that all of their responses to the subpoenas had to be filed under seal, and the organizations complied.

Starr spokesperson Gershman says that while the counsel's office cannot discuss subpoenas, anyone who is subpoenaed "is free to discuss it, unless they don't want to, or maybe their lawyers have told them not to discuss it."

Sara Sun Beale, a Duke University law professor and an expert in grand jury law, says because federal grand jury secrecy rules do not cover witnesses, she knows of no reason why media companies could not publicly denounce their subpoenas. Furthermore, she agrees, unless the court issued a gag order -- which she says would be unusual -- news organizations could put their motions to quash subpoenas on a billboard if they wanted to.

Abrams believes that media companies should be "militant" in their responses to subpoenas. That's critical, he adds, because in his view independent counsels are "treating the press as if they're no trouble at all and as if they can be treated as witnesses to their own interviews."

Arkansas lawyer Anderson president-elect of the American Bar Association, says that in addition to the ABC case, he knows of other subpoenas issued by Starr to news organizations. But, he adds, "I can't tell you out them" because that would violate client confidentiality. He declines to say how many cases he knows of and whether they involve print, broadcast or both, or what was demanded. Anderson emphasizes he is not speaking for the ABA but as an attorney with media clients.

Anderson's firm has represented the state's largest newspaper, the Arkansas Democrat-Gazette, for more than two decades, and has also worked for the three major networks and CNN.

The Arkansas newspaper's executive editor, Griffin Smith Jr., says to his knowledge Starr has not subpoenaed any of the paper's materials.

Representatives of NBC, CNN, the New York Times, the Washington Post, the Washington Times, Newsweek, U.S. News & World Report and Gannett say they have not received a subpoena from any independent counsel appointed during the Clinton administration. A Wall Street Journal spokesman says the paper received a subpoena from Start more than a year ago and agreed only to confirm that information it had published was true.

Los Angeles Times associate general counsel Karlene Goller says the paper has not received any subpoenas from Starr, but did not respond to repeated queries about other independent counsels. Time magazine would neither confirm nor deny receiving subpoenas (see "The Sound of Silence," page 25).

Eileen Murphy, director of media relations for ABC News, says the network has received one subpoena, for the Susan McDougal outtakes. CBS associate general counsel Susanna Lowy says the network received one subpoena, from another independent counsel. Donald Smaltz, who is investigating former Agriculture Secretary Mike Espy, demanded records, outtakes and people to testify. After its motion to quash the subpoena was denied, the network complied.

Lowy would not say who or what had been subpoenaed. But AJR confirmed that "60 Minutes" correspondent Mike Wallace, Executive Producer Don Hewitt and producer Bob Anderson testified before the Espy grand jury.

Spokespersons for Smaltz and David Barrett, who is investigating former Housing and Urban Development Secretary Henry Cisneros, say federal rules prohibit independent counsels from answering questions about subpoenas.

In recent interviews several prominent attorneys, including Victor Kovner, who represents book publisher William Morrow, and James Goodale, the former New York Times general counsel perhaps best known for his role in the Pentagon Papers case, say there is persistent talk in media law circles about subpoenas issued by Starr that have not been made public.

Sandra Baron, executive director of the Libel Defense Resource Center, says, "My distinct impression is that there are a number of subpoenas" issued to both national and local news organizations. "This is very dangerous ground these prosecutors are treading on." Moreover, she says, "I don't think the press has a viable strategy" for dealing with the problem. "It's like shadowboxing, because everything is under seal." Baron finds the silence in the media community "astonishing. I've been baffled by it."

Why would some members of the press go along with subpoenas without a vigorous fight? Have some news organizations chosen to keep the subpoenas secret as part of a strategy to contain negative publicity and to limit the spread of knowledge about their decisions to cooperate? Are media executives hoping they can contain the problem by remaining silent so they will not embolden other prosecutors?

Are they worried that if the subpoenas become public, sources will be reluctant to talk? Are they afraid of setting precedents that are unfavorable to the press by appealing decisions to federal circuit courts considered unfriendly to the media? Or do they just not want to spend the necessary time and money to fight?

Concerns about Starr and his respect for First Amendment rights surfaced most recently when he subpoenaed Sidney Blumenthal, the journalist-turned-White House aide suspected by Starr of leaking negative stories about the independent counsel and his staff to reporters. Abrams believes it is ironic that "while journalists are reporting about the activities of the special prosecutors, often obtaining leaks" about them (and, some say, from them), "the special prosecutors themselves have been engaged in the subpoenaing of journalists' outtakes or notes."

Former NBC general counsel Cory Dunham, who represented the network for almost two decades, says if it is true that a number of news organizations have complied with subpoenas without a strong legal fight and without reporting what is going on, "that's the shocker."

Dunham, author of "Fighting for the First Amendment," says "historically, the stronger national news organizations aggressively resisted government efforts to subpoena notes and program outtakes." He says news outlets have understood that it is essential to fight intrusions by the government both in court and in the court of public opinion, to reinforce the understanding that subpoenaing journalists and their records is improper and to discourage the government from using journalists as part of its process.

William Morrow has been the most vocal in challenging a subpoena from Starr. Last summer Starr demanded that the publisher turn over documents related to a manuscript by Webster Hubbell, the Clintons' close friend and a former associate U.S. attorney general. Hubbell has served time in prison for bilking his clients and former law partners of some $400,000.

Starr apparently was investigating whether Hubbell's memory about Whitewater details had been dulled by money (as much as $500,000 in consulting and other fees) paid to him by companies, among them Revlon (where Clinton friend Vernon Jordan is a director).

Starr's office must have thought Morrow was an easy mark. According to Morrow's written response to Starr's subpoena, HarperCollins, Hubbell's initial publisher, handed over a draft he had handwritten in jail.

Kovner says he was astonished by how broad the subpoena was. In effect, he says, Starr's office "wanted a modem hooked up between our editor's word processor and their office. Every draft and every edit."

Actually, the subpoena demanded much more, including "any and all documents" relating to "any work" for Morrow by Hubbell, his wife or his children, including "all books, manuscripts, computer disks, letters, correspondence, memorandums, facsimilies, correspondence [sic], notes, recordings or any medium...."

Kovner felt no obligation to keep quiet about Starr's efforts. He immediately put out a press release and began mounting a spirited PR and legal offensive. Kovner says he made it clear to Starr's office that Morrow was ready to go to the mat and had authorized him to appeal any decision to turn over editorial documents.

The same day that a front page, above-the-fold article about the battle appeared in the New York' Times, Starr dropped his effort to obtain the editorial material.

More recently, Starr issued subpoenas to two television stations after the Lewinsky story broke. One, WPEC-TV in West Palm Beach, responded that it didn't have any videotapes showing Lewinsky with the president.

Starr also subpoenaed Pittsburgh's WPXI-TV for its interview with retired Secret Service agent Lewis Fox, who said he had seen Lewinsky go into Clinton's office one Saturday. The station's news director, Bob Morford, says he provided aired interviews but refused to turn over unaired footage. Darrell Joseph, an associate independent counsel, replied that the counsel's office may decide to seek the outtakes later.

While the Hubbell subpoena merited page one treatment in the Times, there was far less coverage, mostly brief mentions, in 1996 when Judge Wright forced ABC to turn over outtakes of a "PrimeTime Live" interview by Diane Sawyer with Susan McDougal, who was jailed for contempt of court for refusing to testify about Whitewater. When asked why ABC did not call a press conference or launch a public protest as William Morrow would later do, spokesperson Murphy said, "It's not something we want to comment on publicly."

We know many of the legal details of this case -- the only time any aspect of Starr's rationale for subpoenaing journalists has been made public -- by accident. Barry Ward, a law clerk for Judge Wright, explains that a clerk for the U.S. District Court in the eastern district of Arkansas failed to seal one of ABC's pleadings when it was submitted to the court. Then the clerk mistakenly put the document in the press box where copies of all unsealed matters are routinely left for reporters, he explains. Soon journalists began asking about the ABC motion. Because the case was no longer secret, Ward says, a decision was made to officially unseal some of the documents.

Curiously, although it is referred to in unsealed documents, the initial brief in which ABC sought to quash Start's subpoena was not unsealed, Ward says. Because of the secrecy surrounding the grand jury, no one involved will say how many other documents in the battle over this subpoena remain under seal. The ABC positions cited in this article come from unsealed documents. While several documents were publicly available, the case did not receive big play.

Little Rock attorney Anderson, who represented ABC, says it appears to him that Starr sees news organizations as "arms of the prosecutor's office." That, he says, is precisely what U.S. Supreme Court Justice Lewis Powell feared would happen, referring to the high court's landmark 1972 decision in Branzburg vs. Hayes that led to the articulation of journalists' "qualified privilege" to protect their sources.

The celebrated decision involved three cases, including that of New York Times reporter Earl Caldwell, who was subpoenaed to appear before a federal grand jury to talk about his interviews with members of the radical Black Panthers. The subpoena created a furor. Caldwell had been able to get inside the Black Panther movement "at considerable personal risk," explains Dunham. Many saw Caldwell as heroic, he says, because he was giving the public new information that had not been available about a "very scary" group.

In a controversial 5-4 vote, the Supreme Court ruled that despite legitimate concerns about reporters' needs to protect sources, journalists have no absolute privilege to refuse to appear before grand juries.

However, in an influential concurrence, Justice Powell emphasized that the decision did not mean the government was free to use the press as an investigative arm. Journalists could challenge any subpoena, he said, and he opened the door to what has been called the journalist's "qualified privilege" against being compelled to produce unpublished materials.

Powell urged the courts to ensure on a case-by-case basis a "proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." The decision remains controversial and has been cited and parsed thousands of times by both defenders and opponents of the press.

John Walsh, an attorney who represented Mobil President Tavoulareas in his libel suit against the Washington Post, says Branzburg vs. Hayes "is a case in which you see what you want." And the briefs filed by ABC, William Morrow and Starr's office make this dear.

William Morrow argued that "the First Amendment qualified privilege applies to grand jury subpoenas where there is no showing that the member of the press subject to subpoena witnessed the crime under investigation."

ABC argued that "the vast majority of courts have construed Branzburg, and particularly Justice Powell's concurrence, as recognizing -- rather than rejecting -- a qualified First Amendment privilege for journalists against compelled disclosure of unpublished information and materials, and have established a demanding three-part test for overcoming that privilege."

Instead of going on a fishing expedition, ABC argued, Starr was required to establish that the information in the outtakes was relevant to his probe, critical to his case and not available from other sources.

Starr responded that the three-part test did not apply, but even if it did, he had met it. He said there is every reason to believe that Susan McDougal may have said something prosecutors would find highly relevant in the full interview.

Furthermore, he argued, there is no way of obtaining exactly what she said to ABC from another source. He said ABC's argument was weak because there was no claim anything McDougal said was off the record. "Given that ABC evidently could have shown the unedited interview to the nation without breaching any journalist-source agreement," the independent counsel argued, "it is difficult to see why showing the unedited interview to a roomful of grand jurors would exert a chilling effect on newsgathering."

Moreover, Starr said most of the cases ABC cited did not involve grand jury subpoenas. He concluded that ABC's arguments for a "journalists privilege" have "no merit. Rejecting a claim parallel to ABC's, the Supreme Court has held that the First Amendment does not establish a journalist's privilege," Starr argued.

Abrams responds that "there's a good body of case law which concludes that the journalistic process itself is protected against governmental oversight. Why else would so many courts -- indeed state legislatures -- have protected not just confidential sources but a reporter's notes and outtakes?"

As for the journalist's qualified privilege, Abrams says that since the Branzburg case was decided, "most federal courts of appeals have concluded that Branzburg does provide a level of First Amendment protection for journalists," even in some grand jury cases, and they also have endorsed a "balancing test." However, he says, the press has won "more consistently in civil cases rather than criminal" and "probably more consistently outside the realm of the grand jury."

"So both sides have a body of law upon which they rely," he says.

Former Reagan Attorney General Dick Thornburgh, who recently came to the defense of Starr's investigation, says he "rarely, if ever" subpoenaed a reporter, "and I can't remember the `ever.'" Thornburgh, who served in the Justice Department under five presidents, says "most prosecutors are very wary for a practical reason: You don't want to get the media mad at you."

Former Iran-contra independent counsel Lawrence Walsh, also a Republican, says he has "never subpoenaed a reporter in my life." He says he takes very seriously the principle that subpoenaing journalists or their records, except for very compelling reasons, would chill reporters in their duties to inform the public and would undermine freedom of the press.

Walsh was then asked to consider the Susan McDougal case: Pretend you are the independent counsel and you have just won a conviction against her. You believe she has information crucial to your investigation. You've given her immunity from further prosecution, and now it is time for her to tell the grand jury what she knows. She finds time to talk at length with Diane Sawyer but refuses to answer questions from the independent counsel. ABC has made no claim that any part of the interview was confidential. You want those outtakes in case she has inadvertently said something important.

Would Walsh issue a subpoena for ABC's outtakes? "I'd want to think about it," he said after a very long pause. "I don't think I would subpoena, but I'd want to think about it."

Says Abrams, "I am not saying the press should win every conflict with every independent counsel." But, he adds, "what I take exception to is that more than one independent counsel seems to believe that the First Amendment is not part of his charter."

ABC and Morrow also argued that Starr ignored long-standing Justice Department guidelines that limit the federal government's right to subpoena journalists (see "Protecting the Privilege," page 22). The guidelines state: "Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues." The goal, they state, is to "provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the newsgathering function."

The guidelines, issued in 1970, go on to say that if members' of the Justice Department think a journalist has relevant information, before subpoenaing the journalist or the journalist's records, the department must try to come to some mutual agreement and make a strong case that the evidence in question cannot be obtained elsewhere.

For nearly three decades, media lawyer Goodale says, the guidelines have been very significant to reporters: There has been an understanding that independent counsels, like lawyers working for the Justice Department, should adhere to these guidelines, even though they are not legally binding.

How often do Justice Department lawyers subpoena journalists' notes or outtakes? "Very, very rarely," says Philip Heymann, a professor at Harvard Law School and a former deputy attorney general in the Clinton administration.

Frederick Hess, the Justice Department official responsible for reviewing requests for such subpoenas, says very few are made by federal prosecutors and few of those are approved because the department takes seriously the need for a wall between law enforcement and the press.

Hess says in fiscal year 1996, he sent 13 requests to Attorney General Janet Reno; in 1997, he sent 25 (nearly all were approved). He emphasizes that the vast majority simply asked journalists to verify that what they had quoted was correct. The subpoenas rarely involved requests for notes or outtakes and "almost never" involved requests to identify sources.

The 1994 law reauthorizing independent counsels says they must follow all Justice Department policies and guidelines unless complying "would be inconsistent with the purposes" of the independent counsel act.

ABC argued in its reply brief that Starr's subpoena should be quashed because he was ignoring the Justice Department guidelines that for almost 30 years have severely restricted federal prosecutors' access to journalists' records. Furthermore, ABC argued, courts have held that if the government fails to follow the guidelines, even in grand jury proceedings, a subpoena may be quashed.

However, Judge Wright ruled in favor of Starr. Wright, who is also overseeing the Paula Jones case, addressed only one of ABC's specific arguments about the guidelines. She said the guidelines state that they are not legally enforceable. Most significantly, Wright emphasized that one reason she was rejecting ABC's appeal was because the guidelines say the attorney general must personally approve subpoenas to journalists. If Starr had to get Reno's approval, she said, his independence would clearly be undermined.

Wright's argument was stunning because she based her decision on a point that ABC didn't even raise -- much less disagree with -- in its reply brief. A number of media attorneys agree that Starr's independence would be compromised if he had to get Reno's permission to subpoena anyone. However, Kovner says, "there are lots of other rules in the guidelines" that independent counsels should be required to follow. Wright does not address any of them.

Abrams thinks Wright "misses the point." The core issue, which she doesn't fully address, he says, is "whether the independent counsel has to meet any First Amendment burden before issuing a subpoena. And ABC's argument that the existence of the attorney general's guidelines indicates the force of their First Amendment argument is a very serious, powerful argument to which her opinion simply doesn't respond."

Kovner says for Wright to effectively declare that the guidelines do not apply to Starr means the independent counsel is "above the law."

Sen. Levin, a prime mover behind the independent counsel act over the years, says, "The independent counsel is supposed to abide by the same guidelines as every other federal prosecutor up to the point of seeking approval by the attorney general. If Kenneth Starr does not abide by the Justice Department guidelines, he would be violating the intent of the law."

Many lawyers have wondered aloud why ABC did not appeal Wright's decision. Her finding that the Justice Department guidelines do not apply to Starr seems especially vulnerable to a legal challenge. ABC spokesperson Eileen Murphy says the network was concerned about appealing to the Eighth Circuit, which some worry is not media friendly. If the network had lost, she says, it would have set a bad legal precedent.

But other factors may have played a role. Former New York Times general counsel Goodale points out that the networks are now owned by large corporations that have put significant pressure on news operations to increase their profit margins. Pressing First Amendment rights in the courts can be very expensive.

Kathleen A. Kirby, who submitted a brief supporting ABC for the Radio-Television News Directors Association, says, "I think ABC weighed the monetary issue and said it wasn't worth it."

Former NBC News President Michael Gartner, who made his journalistic reputation in newspapers, says television is "run by guys who came up through marketing and sales" and who aren't "inoculated" with reverence for the First Amendment the way many print executives are.

Kovner, William Morrow's attorney, says he had a much stronger case and better options than ABC. He says Starr's subpoena to the publisher, which was more serious because it called for far more material than outtakes from one interview, was served in New York, a better climate for media interests.

In his motion to quash the subpoena, Kovner argued that the Justice Department guidelines applied in this case and that the Second Circuit, where he had forced Starr to respond, "has long held that journalists' and authors' unpublished notes and drafts are protected from compelled disclosure by qualified privilege under the First Amendment." He also asserted that the qualified privilege applies to "non-confidential as well as confidential sources and information."

After Starr backed off, a New York Times editorial gave the prosecutor the back of the hand. "Whether Mr. Starr has been sufficiently chastened by the dispute is unclear.... Meanwhile, having waged and won an important First Amendment battle, it is hard to begrudge Morrow all the free publicity the fight has garnered for Mr. Hubbell's literary efforts."

While the tradition of resisting subpoenas was already established in print journalism, it didn't start to develop in the budding broadcast news business until the turbulent late 1960s and early '70s.

When social unrest created by the civil rights movement and the Vietnam War began to boil over, the power of TV news came into sharp focus. The three networks joined the print media to protest the rash of subpoenas from President Nixon's Justice Department demanding journalists' records, pictures and TV outtakes.

In April of 1971, CBS received a congressional subpoena demanding that the network produce outtakes from "The Selling of the Pentagon," a controversial documentary criticizing the Defense Department.

In his book "Fighting for the First Amendment," Dunham, the former NBC general counsel, recounts CBS President Frank Stanton's refusal to comply at the risk of being held in contempt of Congress and going to jail. His stand was "a defining moment for broadcast journalism," Dunham writes. Although a congressional subpoena and a grand jury subpoena are different, the principles are similar as far as journalists are concerned, he says.

Members of Congress had assumed that because TV stations were licensed by the government, it could probe TV news in a way it wouldn't dare with a newspaper, he says. Stanton was determined to establish that the same principle that applied to print journalists' notes should apply to TV reporters' outtakes. Congress eventually backed off. Had Stanton lost, says Dunham, "television news would not have developed as it did." He adds, "Sources would have been reluctant to talk to TV because they would have been afraid they would wind up before a congressional committee."

CBS pressed the principle again in 1978 when the House Select Assassinations Committee was investigating the death of President Kennedy. CBS officials said Congress formally requested -- but did not subpoena -- the network's outtakes from its extensive coverage. CBS had hundreds of hours of film that may have shed light on who killed Kennedy. Witnesses had been interviewed when their memories were fresh. In addition, some of those interviewed by CBS had died, making the outtakes especially crucial.

The head of the committee flatly denied to me that he had requested outtakes and other materials because he was sensitive to the First Amendment principle involved (see "The Mysterious Kennedy Outtakes," WJR, September/ October 1978). But the late CBS News President Richard Salant acknowledged at the time that the committee had made both oral and written requests for everything CBS had on the assassinations of both Kennedy and Martin Luther King Jr. A congressional source told me because the committee was afraid of getting into a legal battle with the network, it decided to request rather than subpoena the materials.

Salant said he refused to supply the outtakes because he could not sacrifice the notion that outtakes were like reporters' notes and must be protected from government intrusion, no matter how noble the cause.

Given this storied tradition, it must have been very painful two decades later when two of the giants of CBS, Mike Wallace and Don Hewitt, along with producer Bob Anderson, testified before a grand jury. The panel was investigating former Agriculture Secretary Mike Espy for accepting gifts from agriculture firms he was supposed to be regulating, including from Arkansas tycoon Don Tyson of Tyson Foods, Inc.

In February 1997, the three men testified about a piece Wallace had done on Tyson in September 1994. There was little publicity about the "60 Minutes" subpoena. A brief item in the Washington Post TV column noted that Wallace was "uncustomarily speechless when he emerged" from court, saying, "I am smart enough to follow the advice of counsel." His attorney, Kevin Baine, says Wallace could have talked about the episode if he wanted to, but he just wanted to go home.

Baine says independent counsel Smaltz subpoenaed notes, records and outtakes related to the broadcast. Their motion to quash was denied. Wallace says confidential sources were not at issue, and "they got nothing of any consequence out of me." Baine says the journalists would either have had to comply or go to jail and they decided this was "not worth going to jail" for. "I don't think anyone has ever gone to jail except to protect confidential sources," he adds.

But CBS did not make a big issue about the subpoenas either. Baine acknowledges that there was no reason why Wallace and his colleagues could not have publicly expressed their outrage over the subpoenas.

As the '70s turned into the '80s an assault on press freedom intensified. But two Court of Appeals decisions written by Ken Starr helped reverse the trend. Many media lawyers agree that Starr's opinions supporting the press in the Tavoulareas vs. Washington Post and Ollman vs. Evans (and Novak) libel suits were important not just because of the substantive issues that were decided but also because of the climate in which they were considered.

It's tempting, after reading Starr's decision in the Tavoulareas case, to wonder whether his statements about the importance of hard-hitting reporting in uncovering wrongdoing foreshadow his own adversarial stance in the Whitewater probe and his aggressive use of every tool he has at his disposal to try to get to the truth.

To understand the significance of Starr's decisions it's important to look at them in the larger cultural and political context in which they were handed down.

During the '70s, tensions arose over investigative pieces on corporate misconduct. Business executives began trying to counter what they saw as liberal and anti-business bias. They created organizations to hold journalists accountable, conducted seminars to educate the press about the virtues of capitalism and established fellowships for journalists to study business. Much of the press felt under siege.

There was also concern that the Supreme Court was hostile to the press. It was in this climate, Baron recalls, that the Libel Defense Resource Center was created in 1980 to help protect press freedoms. There was fear, she says, that the famed New York Times vs. Sullivan case -- which expanded press freedom by making it more difficult for public officials to win libel cases -- was being targeted.

The next year "Absence of Malice," a movie in which Sally Field played a reporter who irresponsibly discredited a character played by Paul Newman, captured the public's imagination. Then life seemed to imitate art. In 1982 Gen. William Westmoreland sued CBS for libel. The following year former Israeli Defense Minister Ariel Sharon sued Time magazine for libel. Journalists worried the libel suit was becoming a powerful weapon in a campaign to curtail the press.

It was against this backdrop that the legal battle over the Post's controversial Tavoulareas story was waged. In 1979 the paper reported that Mobil President William Tavoulareas had "set up" his son Peter in a company that did millions of dollars of business with Mobil. Tavoulareas demanded a retraction. When he didn't get one he sued the Post for libel.

Tavoulareas argued that he was not a public figure and therefore did not have to prove actual malice -- that the reporter knew the story was false or showed a reckless disregard for the truth -- to win his case. But the judge ruled that he was a public figure. To establish actual malice on the part of the Post, his attorneys tried to show in part that the story grew out of a culture that placed a premium on what one of the story's editors, Bob Woodward, called "holy shit" stories as opposed to careful, measured reporting.

A jury shocked the journalism world when it ruled against the Post and awarded Tavoulareas more than $2 million. A three-judge appeals court panel upheld the verdict. But by a 7-1 vote, the fall Court of Appeals reversed the decision.

In that epic legal battle two men who are adversaries today ended up on the same side. David Kendall -- Clinton's attorney who has lashed out at Starr for allegedly leaking grand jury testimony to the media-was one of the lawyers representing the Post. Starr, who was appointed to the bench by President Reagan, cowrote the majority opinion overturning the guilty verdict and is widely regarded as its primary author.

Post pressure for "holy shit" stories didn't mean the paper wanted false stories or would knowingly publish them, the decision said. "We agree with the Post that the First Amendment forbids penalizing the press for encouraging its reporters to expose wrongdoing by public corporations and public figures. Rather, such managerial pressure is designed to produce stories that serve, as the panel majority rightly stated, `one of the highest functions of the press in our society.'"

Post reporter Patrick Tyler, who wrote the story, had remarked to a colleague that "it is not every day you knock off one of the seven sisters [oil companiesl." But even if Tyler had wanted to "get" Tavoulareas, Starr and Judge Skelly Wright wrote, "an adversarial stance is fully consistent with professional investigative reporting," especially when the reporter "conducted a detailed investigation" and the story is "substantially true."

"It is settled," they wrote, "that ill will toward the plaintiff or bad motives are not elements of actual malice and that such evidence is insufficient by itself to support a finding of actual malice."

The case dragged on for seven years, demoralizing journalists and, some argue, curtailing investigative reporting on corporations. Starr's articulation (and embrace) of the role of the investigative reporter, his concurrence that as the head of a global oil company Tavoulareas was a public figure (although a limited one), his conclusion that you can't equate a reporter's "adversarial" mindset with the legal definition of malice -- all of these made an enormous contribution to a free press from journalists' point of view (see "Enshrining Investigative Reporting," page 29).

Former Washington Post Executive Editor Ben Bradlee says despite the happy ending, the case created a little "chill." He says he can't remember a time when he said about a hot story, "If I run that, it will cost me a million and a half" in legal fees alone. But, he says, the financial consequences of a story can become part of the calculation, even if it is on an unconscious level.

As for the outcome, Bradlee says he felt "tremendous relief that finally we'd been exonerated." He adds, "In a primitive way, I felt my own integrity was at stake."

(For the record, says Walsh, William Tavoulareas "went to his grave believing that a jury of 12 ordinary people vindicated him.")

Three years earlier, in another libel case that unsettled the press, Starr also came down on the side of the media, articulating a four-factor test for determining whether a statement is fact or opinion, which is protected speech under the First Amendment.

Bertell Ollman, a Marxist professor of political science, sued columnists Rowland Evans and Robert Novak for $6 million. At issue was a column that quoted an unnamed "liberal" professor stating that Ollman "has no status within the profession, but is a pure and simple activist."

Was this a statement of fact or opinion? When the U.S. Court of Appeals decision written by Starr was announced, Floyd Abrams described it as "a very major opinion" that provides "one of the most sophisticated analyses on all parts of what is opinion, fact, hyperbole."

The Tavoulareas and Ollman decisions created a huge reservoir of goodwill toward Starr. Although he has never met Starr, Bradlee says with a laugh, "until recently, he's been on an enormous pedestal in my house."

This high regard in media circles undoubtedly helped Starr as he tried to position himself as a strong candidate for the Supreme Court, a job his friends say he coveted. Starr's decisions also may have played a role in the great press he later received when he became President Bush's solicitor general, as the arbiter who reviewed Sen. Bob Packwood's diaries (see "Screening Packwood's Diaries," page 26) and when he was named independent counsel ("safe and nonpartisan," the New York Times opined).

But now, more than a decade after those decisions upholding the First Amendment, Starr is seriously undermining the rights of the news media, several media attorneys believe.

As for the press? "The fight has gone out of the tiger," Goodale says.

And when the media do not adequately defend their First Amendment rights, Dunham says, the biggest loser is not the press but the American people, "because the First Amendment belongs to the public."

Florence George Graves, a resident scholar at Brandeis University, is the founding editor of Common Cause Magazine and one of the reporters who broke the Packwood story for the Washington Post. Her research for this story was supported in part by the Fund for Investigative Journalism. Amanda Elk, Bridget Gutierrez and Kathy Killeen provided research assistance.

Protecting the Privilege

It's not surprising that the fingerprints of Ben Bradlee, the famed Washington Post editor, are on the 1970 guidelines the Justice Department must adhere to before subpoenaing journalists or their records.

Issued by Attorney General John Mitchell, the guidelines were an attempt to pacify outraged journalists, some of whom were threatening to go to jail rather than comply with a rash of federal government subpoenas for their notes, photographs and outtakes.

It was a time of tremendous turmoil and social upheaval. Students for a Democratic Society was fomenting revolt on campuses. The revolutionary Black Panther Partyy was asserting "black power." The radical Weathermen were agitating for political change. These were inflammatory times. Journalists were capturing the moments; critics said they were fanning the flames.

Bradlee remembers when Mitchell subpoenaed the Post to get all of the photographs it had taken of looters during urban riots. "We huffed and puffed and conferred and gave them beautiful enlargements of the pictures we did run," he recalls. But he refused to give the Justice Department any of the unpublished photographs.

Finally, Bradlee says, he and other Washington editors confronted Mitchell about the persistent subpoenaing of journalists. "We said, `You can't do that!'" He continues, "We were sort of enlightening him -- or trying to -- about the problems it presented us in our God-given duty to report the news and take photographs." The editors told Mitchell that his subpoenas of photographs from the riots "threatened the very lives" of the photographers.

"You can see if we got going on this, we could make it sound pretty good," says Bradlee, warming to the topic. But there was genuine fear that if protesters began to think the reporters and photographers were agents of the police, their lives would be in serious danger, he says. "We couldn't stand for that."

Former NBC general counsel Cory Dunham remembers when network chiefs confronted Mitchell after the federal government issued 40 subpoenas in two weeks for TV footage of dissedents. The outrage created by the plethora of subpoenas to the news media led to the guidelines.

Under the guidelines, the attorney general must approve all subpoenas to journalists. The Justice Department is required to abide by a number of provisions, including first trying to obtain the information from "alternative sources." In addition, the guidelines say subpoenas should generally be limited to the verification of published information.

Are there any important stories that might not have been published if the guidelines didn't exist? The Pentagon Papers, for one, says Jack Landau, who was Mitchell's press secretary and wrote the guidelines. And then there's Watergate, he adds.

It's impossible to know how Watergate would have played out if the guidelines had not been in place. But there's a good chance that the Nixon White House would have felt even more entitled to use the judicial power of the government to try to contain the story.

But even without the guidelines, subpoenas might not have been effective in obtaining Watergate material. The paper has never given reporters' notes to the government, says Bradlee, now the Post's vice president at large. "We wouldn't give them over under any conditions -- not in a Minnesota minute."

What about the 1972 Supreme Court decision that New York Times reporter Earl Caldwell had to turn over interviews with the Black Panthers? "There is a privilage whether the Supreme Court says so or not," says Bradlee, adding that this is particularly true in the case of notes that reveal confidential sources. "If you talk to somebody and they will talk to you on the grounds of confidentiality," Bradlee says, "they can't break that."

The Sound of Silence

An interview with Time Inc. General Counsel Robert McCarthy illustrates just how sensitive questions to the news media about subpoenas from Kenneth Starr and other independent counsels can be.

Asked whether Time magazine had received any subpoenas from an independent counsel, McCarthy said, "We get subpoenas all the time from various people, including independent counsels."

Has Time received a subpoena from Starr? "I can't comment," he said.

Has Time received a subpoena from any independent counsel since Clinton has been president? "I don't have a complete recollection. I wouldn't be surprised, [but] I don't know for a fact."

Would he check? "No, I don't have the time.... I'm not sure we would want to disclose the information" anyway. "I can say we haven't gotten anything in the last two weeks," he said in a March 4 conversation that included a discussion of the recent Sidney Blumenthal subpoena.

Have you ever received a subpoena from Starr? "I don't know for sure," he replied, explaining he wouldn't comment even if he had. Why not? "If we were going to comment about it, we would already have done so."

Screening Packwood's Diaries

Can it be true? Independent Counsel Kenneth Starr, depicted by the Clintons as the Whitewater villain, frequently depicted in the media as an overzealous, vindictive prosecutor, is the same Judge Starr who little more than four years ago was described in the press as "courtly" and "universally trusted"?

Al Kamen of the Washington Post wrote that when serving as a court of Appeals judge, Starr "made his name as an honest broker," even leading critics of his decisions to conclude that he was not "ideologically driven." The accolades flowed after Starr, a former solicitor general for President Bush, was named to give legal advice to the Senate Ethics Committee's investigation of alleged sexual misconduct by Sen. Bob Packwood (R-Ore.).

The probe focused on allegations first published in the Post that he made inappropriate sexual advances to members of his staff, lobbyists and others, even a hotel clerk. Since 1969, Packwood's first year in the Senate, he updated his diary almost daily, often dictating into a tape recorder at night. That translated into thousands of pages of detail about his legislative and sexual conquests and his frank evaluations of various staffers, as well as mind-numbing accounts of his daily life and thoughts -- all willed to the Oregon Historical Society.

The diaries were subpoenaed by the committee as possible evidence. After a fight that went to the Supreme Court, Starr was asked to review the passages Packwood wanted to keep secret and make the final determination about which entries committee lawyers could see and which they could not (for example, those concerning lawyer-client confidences and sensitive family and personal health matters).

Anyone who even faintly worried at the time that Starr, a fellow Republican whom Packwood had approved for the delicate task, might be tempted to err on the side of the senator fretted in vain. The diaries -- as well as Starr's damning conclusion that, as the committee suspected, Packwood apparently had altered some of the entries -- played an enormous role in the senator's downfall.

In the current scandal swirling around President Clinton and Monica Lewinsky, Starr is sometimes described in the press as a very conservative Christian who must be highly offended by the president's alleged womanizing. Imagine this Ken Starr reading the unexpurgated Packwood diaries.

Although the public record consists of only excerpts deemed material to the Senate investigation -- a tiny fraction of what Starr actually read -- even some of these are explosive, revealing Packwood talking in sordid detail about his sexual exploits. In one he described having sex in his Senate office with a staffer whose "big breasts" stood "at attention." In another, he remembered having sex with a lonely aide as part of his "Christian duty."

In still another he recalls a lunch with ABC's Barbara Walters, who was wooing him over baked apples at her Fifth Avenue apartment to appear on "20/20." Apparently trying to establish that his liaisons had been "wanted." not "unwanted," he remembers telling her about the "22 staff members I'd made love to and probably 75 others I've had a passionate relationship with." (Walters later said she didn't remember this revelation, which was not included in her sympathetic profile.)

After the committee's report was released in the fall of 1995, public and congressional pressure began to build for Packwood's expulsion. The senator, who had become a regular target of David Letterman's monologue, decided to resign, collect a fat pension and become a lobbyist. Recently named by Washingtonian magazine as one of the top 50 lobbyists in the capital, the former senator told the New York Daily News earlier this year that he doesn't blame Starr for his troubles. "I thought he was fair and certainly thorough," Packwood said.

Enshrining Investigative Reporting

If not for Kenneth Starr and his fellow judges, Washington Post editor and investigative reporter Bob Woodward might be in a different line of work.

Starr is widely regarded as the primary author of 1987 U.S. Court of Appeals decision that overturned a libel verdict against the Post and unabashedly endorsed the importance of investigative reporting.

During the years of legal combat after Mobil Oil Corp. President William P. Tavoulareas and his son Peter sued the Post, Woodward recalls with a laugh, he kept telling then-Executive Editor Ben Bradlee and the Post's lawyers, "If we lose this case we will be out of business, because this is what we do."

Woodward was one of reporter Patrick Tyler's editors on a 1979 story that said that the elder Tavoulareas had "set up" his son in a shipping business that received "millions of dollars in business operating Mobil-owned ships under exclusive, no-bid contracts." At issue were the words "set up."

The journalism world was stunned when first a jury and then a three-judge appeals court panel ruled against the Post. The relief was palpable when the full appeals court reached a sharply different conclusion. Writing for the majority, Starr and Judge Skelly Wright said the article was "substantially true" and that the record "abounds with uncontradicted evidence of nepotism in favor of Peter."

Woodward, who keeps a dog-eared copy of the decision by his desk along with "some of my favorite books like `Middle-march,' `The Filler Angels,' `Crossing to Safety,' some Saul Bellow books," believes the decision ultimately was more important to journalism than the Pentagon Papers or the Watergate stories he reported with Carl Bernstein.

Here is an edited transcript of Woodward's remarks from an interview with Florence George Graves:

"What I have said to various people at the Post, and I have said this to [Publisher] Don Graham once -- who did not agree -- is that when his descendants are running the Post in the next century, if it stays in the family, that the most important thing to the Post is going to be that Court of Appeals decision, because what it does is it enshrines in constitutional principle the concept of very aggressive, adversarial investigative reporting. And because the Supreme Court did not take the case, it's the law for the District of Columbia, where the Post is published.

"I also said to Don Graham that I thought in about 100 years, if the Post existed and was practicing aggressive investigative reporting, that this opinion would have more significance to his successors than anything, including the Pentagon Papers and Watergate. Because it's the law and the Pentagon Papers and Watergate are only history that applies to those moments -- and it's part of the Post tradition -- but traditions aren't law. And this is the law.

"Now it may be overturned by the Court of Appeals in a later case, but I don't think so, because I think Ken Starr got it right. This is the law that lives on, and when the Pentagon Papers and Watergate are dim, even nonexistent, memories in the year 2072 on the 100th birthday of the Watergate break-in -- and it goes unremembered by the people who are running the Post -- they may have a copy of this opinion on the side of their desk.

"Bradlee has said publicly, `If you come to me and ask me to run that story and say it's going to cost a million dollars in legal fees and all the back and forth, I wouldn't run it.' I argued with Ben about that, saying if someone comes to you with all the facts and says, `You are going to pay a million dollars in legal fees and, yes, have some ups and downs but get this final opinion,' that's definitely worth the money and some of the agony. If you get constitutional law that is the law forever in the District of Columbia that enshrines investigative reporting -- now that's one million dollars for a license. It's the biggest bargain the Washington Post ever got.

"Starr refused to let Tyler's comment about blowing one of the seven sisters [oil companies] out of the water [be considered evidence of malice]. `The mere taking of an adversarial stance is not antithetical to the presentation of facts,' Starr says. Then he goes on with my somewhat well-known comment about `holy shit' stories [and concludes] just because we're trying to find good stories and expose corruption, that doesn't mean that we're unfair or that it's not constitutionally protected within the First Amendment.

"That's why, of course, it is shocking to see that the same Ken Starr -- it's almost like he forgot what he wrote [when he called White House aide] Sidney Blumenthal before a grand jury [to talk about his conversations with journalists]. To put it nicely [it is] mildly inconsistent in my view. It looks like the thick skin he called on everyone else to have, at least on initial glimpse, he seemed not to feel or suggested [did not apply] to him. That may be unfair.... Maybe he does know that it applies to himself, and he's looking at something much more serious, and that people [who are complaining that he's gone too far] have just looked at a couple of subpoenas; Absent more information, I guess in fairness I would give him the benefit of the doubt."

Woodward recalls that when he and Scott Armstrong were working on "The Brethren," a book about the U.S. Supreme Court, Starr, a former law clerk to Chief Justice Warren Burger, was one of the few people who wouldn't cooperate.

"He said, in effect, `Mr. Woodward, I wish you luck, but I would just not feel comfortable.' He was not going to talk to us about the Supreme Court because he had had a confidential clerkship with the chief justice. I interpreted it as antipress, which shows how narrow-minded we in the press can be. Then when he was on the Court of Appeals in the Mobil case, I thought, `Oh Christ, we're in real trouble because this guy is anti-press.' I was stunned to see that he wrote that opinion.

"What's my bottom line? That based on my experience with him, and I have met him and talked with him a number of times, but not much, he's basically somebody who plays by the rules very strictly and is quite open-minded. He was able to write this opinion [despite his background as a conservative Republican, which would suggest he might see the press as] one of the institutions in American life whose power should be curtailed or called into question. His opinion did the opposite, of course."