United States v. Falk Brief on Motion to Quash Subpoena

    IN THE UNITED STATES DISTRICT COURT
FOR THE

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA
V. NO. E.B.D. 71-165

JOHN DOE
(IN RE GRAND JURY SUBPOENA: 
RICHARD FALK, WITNESS)

BRIEF ON MOTION TO QUASH SUBPOENA

JACK J. LEVINE, ESQUIRE 
1427 Walnut Street 
Philadelphia, Pennsylvania 19102 
215-563-1388

THOMAS G. SHAPIRO, ESQUIRE 
73 Tremont Street 
Boston, Massachusetts 02108 
617-227-8420

FILED: September, 7, 1971



TABLE AND SUMMARY OF CONTENTS

PAGE
I. STATEMENT OF QUESTIONS PRESENTED IV

II. PRIOR PROCEEDINGS

III. SUMMARY OF THE RECORD BEFORE THIS COURT ON THE FIRST 
AMENDMENT ISSUE

A. Introduction
B. Richard Falk's scholarly activities relating to the 

Vietnam War are uniquely dependent upon his access to 
information which would not be available to him but 
for the extraordinary trust and confidentiality which 
has attached to his past professional activities.

C. Notwithstanding his other professional roles^his role 
as a journalist, including television other media 
activities, itself is central to his professional activities 
and public value.

D. An equally significant scholarly function flows from his 
sustained and frequent advisory contacts with members
of the United States Congress, and the confidentiality 
and trust attached thereto.

E. His role as a legal scholar, and as an expert legal 
consultant and witness with regard to judicial proceedings 
involving the legal aspects of the Vietnam War depend 
crucially on his confidential and intimate familiarity with, 
and access to,the subject matter of this grand jury investi­
gation, and his public value to our judicial system in this 
capacity is arguably more important than whatever marginal 
value he may serve as a grand jury witness.

11

13



F. Movant's mere appearance before this grand jury, coupled 
as it is with no showing of compelling and overriding 
governmental interest, will provide no benefit to the 
grand jury and will irreparably interfere with his own 
professional activities and similar activities by others. 15

a. Activities such as Movant's, in all pf his 
abovementioned roles, provide an indispen^ble 
and unique public value, which value is premised
upon absence of governmental intrusion. 15

b. A condition precedent to Movant's mere appearance
should be a showing by the government of compelling 
and overriding national interest. 17

IV. ARGXJMENT 19A

I. The Professional And Public-Educational Activities Movant 
Seeks To Preserve Are Protected By The First Amendment 
Against Governmental Intrusion. 19a

A. Movant's journalistic activities, because they are 
primarily concerned with the subject matter of the 
Pentagon Papers, fall within the scope of Caldwell v. 
United States. 434 F.2d 1081(1970), cert. granted
91 S. Ct. 1616(1971). 20

B. Notwithstanding the applicable scope of the journalist 
privilege. Movant's activities as a professional 
scholar and author are themselves cognizable under the 
First Amendment, and, as such, are entitled to the 
parameters of protection established by Caldwell, supra. 21

C. Movant's professional activities are protected against 
this grand jury's intrusion unless and until the 
Government demonstrates a national interest so compelling, 
overriding, and unique to Movant that it outweighs the 
public worth of his own and similar protected pursuits. 29

1 1



D. In the absence of compelling and overriding 
need. Movant may not be compelled to appear 
before the grand jury at all, as there is no 
testimony he could give which would not be 
within the bounds of the protective order 
required under the rule of Caldwell, supra. 41

II. Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) 
and/or 18 U.S.C. Sections 2510(11), 2515, 2518(10) and 
3504 Require The Government To Affirm Or Deny The Use Of 
Wiretap And/Or Other Electronic Surveillance Upon The 
Allegation By A Grand Jury Witness That Such Surveillance 
Has In Fact Occurred 45

III. CONCLUSION 46

111



QUESTIONS PRESENTED

Richard Falk is a nationally and internationally known
scholar and author whose studies of the nature and legality of the
Indo-China War are authoritative in the field. His recognizedly
pre-eminent activities as journalist, author and lawyer, as they
relate to the war, are uniquely and crucially dependent on the trust and
confidentiality which has attached to his efforts to secure accurate
and complete information, as well as write, counsel and consult with
others. The excellence of his work would not have resulted, nor will it
continue, but for these relationships, and that excellence has at once
been the source of, and impetus to, the consultation with him by others.
Therefore, the first issue before this Court is:

WHETHER, CONSISTENTLY WITH THE FIRST AMENDMENT, A 
PROFESSIONAL SCHOLAR AND AUTHOR-JOURNALIST MAY BE 
COMPELLED TO APPEAR AND TESTIFY BEFORE A GRAND JURY 
WHERE THE UNQUESTIONED EFFECT OF HIS APPEARANCE WILL 
BE TO INFRINGE UPON AND DESTROY CONFIDENTIAL ASSOCIATIONS 
AND RELATIONSHIPS WHICH ARE INDISPENSABLE TO THE QUALITY, 
ACCURACY AND CONTINUED EXISTENCE OF HIS WRITING AND OTHER 
PROFESSIONAL PUBLIC-EDUCATIONAL EFFORTS
In addition, Richard Falk has moved to quash his subpoena on 

the grounds that he has allegedly been the object of unlawful wiretap 
and/or other electronic surveillance. The second question is therefore:

IV



WHETHER A GRAND JURY WITNESS HAS STANDING UNDER 
18 U.S.C., SECTIONS 2510(11), 2515, 2518(10) and 
3504 AND/OR SILVERTHORNE LUMBER CO. v. UNITED STATES. 
251 U.S. 385(1920) AND ITS PROGENY, TO DECLINE TO 
APPEAR BEFORE A GRAND JURY ON THE GROUNDS THAT HIS 
SUBPOENA, OR THE QUESTIONS TO BE PROPOUNDED TO HIM, 
FLOWED DIRECTLY OR INDIRECTLY FROM UNLAWFUL WIRETAP 
AND/OR OTHER ELECTRONIC SURVEILLANCE.

V



I.
PRIOR PROCEEDINGS

On Monday, August 16, 1971, Richard Falk was subpoenaed 
to appear before a federal grand jury then sitting in the District of 
Massachusetts. This subpoena was made returnable on Friday, August 20, 
10:00 A.M. On the morning of August 20, Professor Falk filed with this 
Court a motion to quash this subpoena, at the same time requesting that 
his appearance be stayed pending the filing of affidavits and brief, and 
argument thereon. A stay pendente lite was granted by this Court on 
August 20, and the matter set down for argument on September 10, 1971. 
This Court also provided that such affidavits as the witness and the 
government saw fit to submit would constitute the record in this case, 
without further live testimony being required.

1. Professor Falk is Albert G. Milbank Professor of International Law 
and Practice at the Woodrow Wilson School of Public and International 
Affairs, Princeton, N.J. He also is a Research Associate and Member of the 
Advisory Committee of the Center of International Studies, which is an 
adjunct to the Woodrow Wilson School. He is a member of the Bar of the 
State of New York and of the International Court of Justice, the Hague, 
Netherlands. His Vita, as it is directly relevent to the issues here raised, 
is attached hereto as Exhibit A(l).



II.
SUMMARY OF THE RECORD BEFORE THIS COURT ON 

THE FIRST AMENDMENT ISSUE

A.
INTRODUCTION

The record upon which Movant will rely consists of a series
2

of twenty-six affidavits, both his own and of others. His
affidavit is of course the keystone of the record, and reference to it 
will be made in conjunction with references to those of the supporting 
affidavits which either testify to the verity of the Falk affidavit or 
lend particular credence because the affiant's own experiences and 
concerns parallel those of Falk. Because Movant functions in a variety 
of professional roles, all of which we contend are protected by the 
First Amendment, there will of necessity be some overlap in the summation 
of the record. Briefly stated, his contentions are threefold: First,

2. These affidavits have been collated, paginated, and filed with the 
clerk of the Court, to be made part of the record in these proceedings.
Each affidavit has been given a letter designation, and this record has 
been paginated serially. References to this record will be made by the 
name of the affiant, the exhibit letter of his affidavit, and the page 
number of the reference (e.g. Falk, A, p.lO). Where relevent, the pro­
fessional capacity of the affiant will also be summarized.

It should be noted, as the Court is already aware, that these affidavits 
were prepared with great haste, and that because a number of those solicited 
for affidavits were on vacation (particularly members of Congress) Dr. Falk 
was often unable to immediately locate them. See Falk, A, p.22. This 
brief has been prepared on the basis of those affidavits in hands by 
August 31, 1971. In the event that more material arrives, it will be filed 
with the Clerk by September 10 and referred to during oral argument.

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that his professional performance, particularly as it relates to the 
same subject matter covered by the "Pentagon Paperŝ " has uniquely 
depended upon the use of information lathered from confidential sources; 
Second, that others believe the absence of such sources would severely 
damage his professional effectiveness in this narrow area; and Third, 
that mere appearance by him before this particular grand jury would 
unquestionably inflict the kind of damage referred to. See Falk, A,
pp. 1-2.

B. Movant's Scholarly Activities Relating To The Vietnam War 
Are Uniguelv Dependent Upon His Access To Infoirmation Which
Would Not Be Available To Him But For The Extraordinary____
Trust And Confidentiality Which Has Attached To His Past 
Professional Activities.

The work product of Richard Falk's activities, particularly
as they relate to the Vietnam War, are, under any measurement standard,
truly extraordinary. Continual testimony to this exists throughout the 

3
record, and his own affidavit impressively recites the s\am total of 
these efforts. The record is replete with testimony that this uniqueness

3. E.g. Richard J. Barnet, Co-Director of the Institute for Policy 
Studies in Washington, D.C.: "He is one of the country's outstanding 
students of international law and the leading expert on the legal aspects 
of the Indo-China War. He plays an almost unique role as unofficial 
advisor, scholar, and journalist, combining a comprehensive knowledge of 
law and a sophisticated understanding of the relevent facts surrounding 
United States involvement in Indo-China." Barnet, B, p. 29

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is at once the sourcefor, and impetus to, consultation with him by other 
4

professionals, and that, as Movant himself recites, at length, these 
consultative and advisory roles are central to his professional standing.

4. "We...have continually called upon his seemingly unexhaustible services
as a resource pegsgn, as program advisor, and as a consultant in points 
of intemaltional/ domestic law, particularly as they relate to the Vietnam 
War. His access to a wide variety of materials, studies and documents 
contribute jtowjLrd his rare eclectic approach to contemporary problem 
solving. . ./Hi_s/writings and lectures are sought after by individuals and 
groups nationwide, in the Congress of the United States and at international 
conferences." Knopp, C, p. 3CL "His services as a professional consultant 
and resource expert have been essential to our own understanding of issues 
...". Mea.cham, D, _p̂  31. "Professor Falk is one of the very few experts
in such /War relate^ mattery to whom we have wished to turn." Lauter, E, 
p. 32 . "His contributions /to the conferences and seminars sponsored by
the Fund for New Priorities in Americ^ were perhaps the major reason for 
the impact of our efforts." Meyers, F, p. 34 . "He is one_of 24 elected 
Council members of /the Federation of American Scientist^ and is a 
valued source of advise to us; his high, unique, and unblemished reputation 
makes him a "special asset". Stone, G, p. 35-36.

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There can be no doubt that, as Movant testifies, his 
5

extensive writing and lecturing on America's involvement in the Vietnam
war has depended upon his access to real facts, or, he describes, "the
real state of affairs". Falk, A, 3. "In essence, this scholarly role
has depended upon getting at the real facts wherever possible". Falk,
A, 3. That the range of his contacts in ferreting out the truth encompasses

6
a wide variety of political opinion is supported by the record, as
is the fact that this unique ability to deal with both sides of the
political spectrum has enhanced his reliability amongst those who consult 

7
him.

5. A partial catalogue of these writings is set forth at Falk, A, pp.4-5, 
10-11. See also Falk Vita, Exhibit A(l).
6. E.g. Harold Feiveson, presently lecturer in the Woodrow Wilson School of
Public and International Affairs, Princeton University, and formerly an 
analyst for the United States Arms Control and Disarmament Agency:"Professor 
Falk is one of the very few persons I know of with wide contacts both among 
vigorous opponents of American defense policy and among present and past 
members of the government who apply a more marginal and restrained criticism 
to American foreign policy. He therefore brings to his writing and advice an 
unusually broad perspective and an intimate familiarity with the positions
and attitudes of several diverse groups, a capacity that I and many of my 
colleagues have found very useful." Feiveson, H, p, 39
7. "As a particular example, I was importantly influenced, while in the
Arms Control and Disarmament Agency and engaged in policy analysis of the 
Non-Proliferation Treaty, by Professor Falk's articulation of the special 
attitudes of the underdeveloped countries toward international security". 
Feiveson, H, p. 39 . "He has been an invaluable consultaht and source of
ideas, not least of all because his many contacts provide him with a deep 
and broad knowledge of world affairs that enables him to be an excellent 
judge of the merits of attempts by scholars to understand and interpret 
current issues and events." Thatcher, I, p. 40

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Central to the scholarly effort of seeking information about 
the War, and central to the First Amendment claim here made, is the 
need for absolute confidentiality and the trust and confidence built 
thereupon. Two of the supporting affidavits before this court, one 
written from the vantage point of book editor and the other from that of 
a noted scholar and published author, focus directly on Movant's beliefs 
in this regard:

Sanford G. Thatcher, Social Science Editor, Princeton, 
University Press: "Many books today that deal with 
matters of immediate national and international concern 
could not have been written at all without the use of 
information obtained through private interviews and 
other confidential communications and this is perhaps 
pre-eminently the case with investigations of the Vietnam 
War and related issues which Professor Falk has chosen as 
one of the primary focuses (sic) of his professional re­
search." Thatcher, I, p. 40 . (Emphasis supplied).
Ronald Steel, journalist, author, teacher, and Member of 
the Council on Foreign Relations: "In order for either a 
scholar or a writer to conduct his role with integrity and 
efficiency, it is absolutely essential that he feel free 
to discuss matters of public interest with various individuals 
who may, for various reasons, not wish their remarks to be 
quoted publicly. The quest for truth relies upon trust and 
access to information which may not be generally available 
to the public. Not uncommonly, individuals, whether in 
private life, government or business, seek to conceal wrong­
doing, and it is the role of the responsible scholar or 
journalist to ferret out the truth. To do so he must often 
seek sources of information which would remain closed to him 
were he not able to guarantee that they would be entirely 
confidential." Steel, J, p. 41 • Emphasis supplied.

8.
Falk's own affidavit focuses repeatedly on this need for confidentiality.

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8. At p. 3: "My understanding of such complex and controversial 
current developments has depended upon having access to confidential in­
formation and to various individuals in and out of government who would 
not be able to discuss this sensitive subject matter with me if they 
thought that I might be compelled to disclose it in the course of an 
investigation of this type"; "Again, my sources of information depended 
really upon an assurance on my part that the discharge of this professional 
role would not be subject to the sort of scrutiny that is involved in 
a proceeding of this type whose focus is upon how information relating to 
the war was acquired." "Here, too, my capacity to report truthfully and 
effectively depends upon maintaining contact of a confidential sort on 
all sides."

At pp.4-5 Falk lists twenty (20) examples of his recent writings which 
have "relied upon confidential information to inform its presentation."

At pp.9-10: "...my role as journalist and participant in community 
affairs has depended on similar access to confidential information relating 
to the war"; "As with any journalist, my success has depended on building 
up and maintaining confidential sources of information and of convincing 
editors that I have things of value to write about," citing examples and 
and listing at pp. 10-11 examples of journalistic writings.

At p. 10, with explicit reference to the subject matter of this 
grand jury: "I was invited (but declined) to participate_in an informal 
Congressional conference devoted to /the Pentagon Paper^ and have been 
asked by the weekly magazine Commonwealth to do a book review of the 
Pentagon Papers. American Report, and several national newspapers and 
magazines (New York Post, Philadelphia Inquirer, Time) invited my comment 
on the disclosure of the Pentagon Papers when they became public. In each 
of these settings my value as an interpreter of the news depended on my 
access to information and on my reputation for confidentiality."

Other assertions of this need for confidentiality and trust, with 
specific examples, can be found on virtually every page of Falk's affidavit.

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as do virtually all of the other affidavits furnished in support of
9this contention.

9. E.g. "His professional contributions depend crucially upon his access 
to confidential sources of information. Because of his reputation for 
discretion he is able to talk regularly with individuals whose cooperation 
is essential to an informed professional understanding of the crucial 
problems with which Professor Falk is concerned as scholar, lawyer, and 
journalist." He has been able to play his "invaluable role...only because 
of the confidential character of the sources he has developed." Barnet,
B, p. 29 . (Emphasis supplied)

"On the basis of intense involvement in the fields of international 
relations over the past fifteen years, it is my firmly held judgment that 
responsible scholars and journalists must have access to information 
where representations that confidentiality concerning the source of this 
information is of paramount consideration in eliciting it." Mendlovitz,
K, p. 42 . Emphasis supplied.

Perhaps the most dramatic example of the need for confidentiality, 
and the extraordinary trust which Falk enjoys because of his ability to 
preserve it, were his successful efforts to arrange the participation 
in American television debates of the Paris negotiators for the Democratic 
Republic of Vietnam and the Provisional Revolutionary Government. See 
Teicholz, McGhee, and Cook, L, M and N, at pp, 44-51 ; and sections 
dealing with Falk as journalist, infra, pp. 9-10 . Likewise, with regard 
to his successful efforts to arrange private talks between these Paris 
negotiators and Members of Congress. See Falk, A, pp.12-13.

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C. Notwithstanding Movant's Other Professional Roles, His 
Role As A Journalist. Including Television And Other 
Media Activities, Itself Is Central To His Professional 
And Public Value.

As is more fully discussed infra, p.20-21 a quite common
and natural occurrence is the welding of journalistic activities with

10
scholarly pursuits. All of the considerations of confidentiality and
trust discussed above apply with equal vigor to these journalistic
pursuits, recited in detail at Falk,A, pp. 9-11 (including list of
publications), 14 (with particular reference to television and radio,
and 15 (journalistic activities in the explicit context of the Pentagon
Papers).That Falk's contributions as a journalist are considered important
among his peers is illustrated not only by the extent to which the media
publish and utilize his work, but also by the recognition by his
colleagues that such efforts are an important role to which attaches

11
considerable public value. It seems fair to say that Falk's ability to

10. In addition to Falk's affidavit, several of the supporting affidavits 
illustrate the role of journalism in the larger context of an academic 
career. See, e.g.. Steel,J, p. 41:"Like Professor Falk I am both a scholar 
and a journalist, a combination of careers which is true of a great many 
people at a time when it is necessary for professional expertise to be 
conveyed to the widest possible audience."
11. "Professor Falk's journalistic contribution on matters of world 
peace have in my view been of immense importance to the American public 
over the past four years." Mendlovitz, K, pp. 42-43 .See also, Teicholz, 
Cook, McGhee, M, N, L, at pp. 44-51 .

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to deal in confidence and trust with Vietnam veterans and North Vietnamese
and NLF negotiators, and journalistic efforts such dealings produce,
parallels the kind of contribution to public dialogue that Earl Caldwell

12 '

has made respecting the Black Panther Party.
In a more generalized sense, this can be said of virtually 

all of Falk's journalistic efforts, relating as they do to a subject of 
great controversy and the understandable reluctance of many of his sources, 
particularly government officials, to make revelations which might later 
come back to haunt them. Falk's articles, regarding such topics as war 
crimes and individual responsibility therefor, and prisoners of war, of 
necessity involve him in tracing the decision making process as it occurs 
within the government. Informed judgments at these matters "must deal with 
what responsible governmental officials knew at a given time what they 
told the public and Congress, and how they acted as a consequence."
Falk, A, p. 17. It should be noted, most importantly, that the revelation 
of this decision making process is the single most important aspect of 
the Pentagon Papers and that informed commentary on the Vietnam War would 
be markedly dependant upon the kind of information contained therein.

12. These contacts, particularly with veterans who have revealed to 
Falk information relating to alleged war crimes (See Falk, A, p. 3, and 
Lauter, E, p. 32 ), are precisely analagous to Caldwell and the Black
Panthers. Both kinds of contacts and transfer of information are infected 
with the fear that confidences, once broken could quite probably lead to 
some fomn of official retribution.

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D. An Equally Significant Scholarly Function Flows From 
Movant's Sustained And Frequent Advisory Contacts With 
Members Of The United States Congress, And The Confidentiality 
And Trust Attached Thereto.

Members of Congress, their respective staffs, and the staffs 
of the respective Congressional Committees have in recent years placed 
increased reliance upon the academic community in virtually all areas of 
legislative concern. Nowhere has this been more true than in the field of 
foreign policy, with virtually continual committee testimony being heard 
and counsel solicited and given. As is the case with his other contribu­
tions, Movant's activities here are remarkable. These activites are set 
forth at length at Falk, A, pp. 8-9,12, and 17-18, and have included 
publication of writing in the Congressional Record, confidential counseling 
with members of the Senate, counseling with Congressional staffs on 
matters relating directly to Vietnam (e.g. implications of SEATO treaty; 
status of Geneva Conventions on Prisoners of War), testimony and writing 
for the Senate Foreign Relations Committee, arranging confidential contacts 

between Senatccsand Paris negotiators, and counseling with Senators on the form 
and/or advisability of particular pieces of legislation.

13. The confidentiality which attaches to such activities has arisen 
in another context in these proceedings. See In Re Leonard Romberg, Witness, 
No. . To the extent that they overlap, counsel for Professor Falk
specifically adopt those grounds set forth in support of the motion to 
quash filed by Dr. Rodberg.

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All of these efforts have been carried out with the utmost
attention to ascertaining and presenting accurately the facts about
the war as they may be known to Falk. One example in particular
illustrates the manner in which the gathering' of information, ituch
of it confidential, plays a subtle yet crucial role in this process:

"I was approached by Senator Harrison Williams 
of New Jersey in early 1971 to prepare an advisory 
report for him on whether to support an effort to 
curb the power of the President in the area of war 
and peace. The value of such a report depended on an 
assessment of the war in which Presidential decisions 
were made in the context of the Vietnam War. This kind 
of information is precisely the sort covered by the _̂4 
Pentagon Papers." Falk, A, p. 18 (Emphasis supplied).

The extraordinary subtlety and delicacy of contacts between academicians
and Congress is set forth in detail at Stone, G, pp. 35-39 . Such
delicacy is implied throughout those portions of Movant's affidavit

15dealing with Congressional contacts.

14. ^-pp. 13-14 infra,with regard to this decision making process.
15. Nowhere is this more apparent than with regard to channeling 
information from Paris negotiators to American officials. See Falk, A, 
p. 19. Also of significance is the indirect effect such information may 
have on legislation. See Crown and Standard, 0, pp. 52, 55 » detailing the 
affiants' belief that Falk's contacts in Paris contributed to the 
passage of the "Mansfield Amendment".

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E. Movant's Role As A Legal Scholar, And As An Expert 
Legal Consultant and Witness With Regard To Judicial 
Proceedings Involving The Legal Aspects Of The Vietnam 
War Depend Crucially On His Confidential And Intimate 
Familiarity With And Access To The Subject Matter Of 
This Grand Jury Investigation, And His Value To Our 
Judicial System In This Capacity Is Arguably More Important 
Than Whatever Marginal Value He May Serve As A Grand Jury 
Witness.

Let it first be said that "there are very few, if any, American
international law specialists who are able and willing to play this role.",

16Falk, A, 16, and his value must be measured in this context. Falk's 
activities as legal advisor or defense witness is detailed at Falk, A,
16, and has centered primarily upon gathering, making available, and 
testifying in open court to the character and legality of the war policies. 
This activity has of course supplemented his other legal writings on the 
war, as well as his work with the Lawyers Committee on American Policy 
Toward Vietnam (See Crown, and Standard, 0, pp. 5 1-56.) and their wide 
distribution of material to members of the bench and bar. It has likewise 
been explicitly relied upon in several instances, most notably in this 
judicial district (Falk, A, p. 17).

At the heart of this activity is unimpaired access to
facts:

"Let me stress that the inference of illegality relates 
closely to the actions and intentions of leading policy­
makers and that such an inference can be reliably made 
only by access to just such information as was contained

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in the Pentagon Papers. An informed judgment about 
illegality must deal with what responsible 
governmental officials knew at a given time, what 
they told the public and Congress, and how they 
acted as a consequence. To cut someone (sic)like 
myself from such information is to reduce my 
capacity to base legal conclusions on the best
available evidence. This information would no longer be available 
if I am to be required to testify as to whether and 
how I gained such information, from whom and when.
Unimpaired access is needed to assure my professional 
competence. Falk, A, p. 17. (Emphasis supplied).

16. The value of this availability is set forth in the affidavit of 
Paul Lauter, Executive Director of the United States Servicemen's 
Fund: "In our work with the U.S. Servicemen's Fund we have come into 
touch with servicemen or veterans who have, or believe they have, 
committed war crimes or other violations of international or military law. 
In pursuance of our corporate purpose to seek the well-being of such 
serviceman and women, and in the public's interest in achieving justice, 
we have sought out expert scholarly and legal advice to determine the 

most appropriate course of action for such persons to pursue, consonant 
with their consciences, mental health, the relevant law, and the
public interest. Professor Falk is one of the very few experts in such 
matters to whom we have wished to turn. However, given the ambiguous 
character of many war crimes statutes and precedents, the sometimes 
uneven application of the Uniform Code of Military Justice, and the 
highly emotional character of these matters in the United States today, 
absolute confidentiality and trust is essential to GI's and veterans 
desirous of examining possibly illegal activities, in Vietnam and 
elsewhere, in which they participated. It is my judgment as Executive 
Director of the Fund that such GI's and veterans would be extremely 
reluctant to discuss their cases with scholars who had been or were to 
be interrogated by Grand Juries, regardless of what they did there.
Work on behalf of United States military personnel would thus be 
significantly limited and, it may be, the causes of establishing clarity 
in the legal obligations of military personnel and the public's interest 
in seeing justice done would be, too."

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F. Movant's Mere Appearance Before This Grand Jury,
Coupled As It Is With No Showing Of Compelling And 
Overriding Governmental Interest, Will Provide No
Benefit To The Grand Jury And Will Irreparably____
Interfere With His Own Professional Activities And 
Similar Activities By Others.

a. Activities such as Movant's in all of 
his above-mentioned roles, provide an 
indispensable and unique public value, 
which value is premised upon absence of 
governmental intrusions.

Those portions of the record which testify to public value 
necessarily rest on the premise that governmental intrusion, including 
the mere appearance under compulsion before a grand jury, will diminish 
or destroy public rights. It is well to note here the assessment of such 
dangers necessarily involves a balancing process, and that to the extent 
that public value of a given individual's contribution may be large, 
the balance is affected accordingly. Also noteworthy here is the fact 

that the publication of the subject matter of this grand jury inquiry 
has already been held to be of public value and non-injurious to the 
national security. New York Times v. United States, 91 S. Ct. 2140(1971). 
To the extent that a grand jury witness was not a direct participant in 
whatever criminal activities attached thereto, the need to protect his 
public value is accordingly enhanced.

None of the countless experts who have studied the Vietnam War 
have contributed more to scholarly and public dialogue than Richard Falk.

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Repeated and continual reference to this fact is made in the affidavits
before this Court, and it is made notwithstanding whatever partisan

17
views various scholars and journalists have expressed and with particular

18
reference to cited examples.

The right and need for the kind of work Falk has done to be
in the public domain is perhaps best expressed by W. Duane Lockard,
Chairman of the Department of Politics at Princeton University:

"I believe it to be in the public ingerest for access
by scholars and journalists to confidential sources to
be protected to as wide a degree as is reasonably
possible. It is always better to have more rather than
less public knowledge about dissident groups— both to
let their ideas be presented through responsible sources
and to permit thoughtful analysis of the social and
political phenomina involved. Professor Falk's analysis
as a scholar and his journalistic presentation of evidence
and argumentation would seem to me to be outstanding
examples of the kind of work that deserves precisely the
kind of protection in question here. If his scholarly
and other professional activity serves the cause of a
democratic and open society, as I would insist it does,
then it deserves protection because it is quite literally
in the public interest." Lockard, Q, p. 59 .(Emphasis supplied)

17. E.g. William J. McLung, Managing Editor of the University of 
California Press: "The strength of his scholarship and its value to our 
society has been based in part, I believe, on his relationship of trust 
with both opponents and defenders of American policies in Vietnam and 
elsewhere." McLung, p, p. 57 . See also, Feiveson, H, quoted, supra, fn. 6
18. E.g. "Professor Falks contribution to our discussions and to our 
further research./involving project participated in by scholars from 
around the world/ are considered by the entire group to have been particularly; 
significant and we are aware that some of his contributions have been based 
on information regarding which he assured confidentiality of source." 
Mendlovitz, K, p. 42 . "His contributions to at least three of these
conferences and seminars /Fund for New Priorities in America/were perhaps 
the ipajor reason for the impact of our efforts in the areas of concern."

- 16 -



This assessment is shared, either explicitly or implicitly by all of
19

the affidavits before this Court.

b. A condition precedent to Movant's mere 
appearance should be a shoving by the 
government of compelling and overriding 
national interest.

This contention, in its legal implications, is set forth 
more fully, infra, pp 41-44. No such showing has yet been made in 
the record before this Court, and that is the only kind of showing which

18. (cont.) Meyers, F, p. 34 . See also the account of Falk's unique
role in television coverage of the Paris negotiations, McGhee, Teicholz,
Cook, L,M,N, pp. 44-51 ; and his role in arranging contacts between
Congress and Paris negotiators, Falk, A, pp 12-13.
19. E.g., Mendlovita, K, at p.42 : "In my judgment there is an over­
riding public interest in making certain that scholars and journalists 
are able to carry out this type of investigation. Furthermore, any 
procedures, such as an appearance before the grand jury, which jeopardizes 
this confidentiality would seriously curtail this source of information.... 
Professor Falk's journalistic contributions on matters of world peace have 
in my view been of immense importance to the American public over the past 
four years."

Crown and Standard, O, at pp. 53-56: "We earnestly believe that 
Professor Falk's very appearance before a Grand Jury pursuing this kind of 
investigation will irreparably breach and damage associations and have a 
chilling effect on his relationships with such sources of information to 
the detriment of the public's right to know the truth about this crucial 
issue affecting the very lives of Americans." (Emphasis supplied).

Thatcher, I, at p. '40 : "Such interference with the public's right
to know is tantamount, in the effect it would have, to overt official 
censorship... If the people who provide such information on the understanding 
that they will not be identified as its source see that there is no protec­
tion against disclosure because Grand Jury investigations of this kind can 
compel scholars and journalists to betray the trust placed in them, then it 
is inevitable that these sources of information will dry up, and the public

- 17 -



19. (con't.)
will be deprived of the possibility of learning more of the truth than 
official sources choose to reveal...and they would have no access to... 
any insights or information other than what the public record disclosed."
(Emphasis supplied).

Meyers, F, at p. 34 : "Expertise is vital to the continuing 
education process in a free society.... I believe that the expertise of 
Professor Falk clearly requires the kind of source material which he must 
receive on a confidential basis. If this opportunity is removed from him 
and other experts and scholars the damage will be far greater than only to 
their expertise." (Emphasis supplied). _ _

Barnet, B, at p. 29 : "To interfere with /Falk‘S  important
public service by compelling him to appear before a Grand Jury investigating 
matters within his professional competence as lawyer, scholar and journalist 
would be a disservice to the public."

- 18 -



could force Falk to testify beyond the confines of the kind of protective 
order to which he is entitled. Furthermore, Falk states in his affidavit 
that there is absolutely nothing as to whii h he could testify which would 
not be proscribed by such an order. See Falk, A, p. 21 . Thus, on the
record as it now stands, this Court, by compelling mere appearance, would 
essentially be compelling an act useless to the grand jury and damaging 
to Falk. The damage,in this context, is not so much the danger of revealing 
particular confidences before the grand jury which relate to the Pentagon 
Papers, as a protective order would proscribe that. The damage is the 
obvious and inevitable certainty, already spelled out in our summation of 
the record, that sources of information concerning the war, particularly, 
and foreign policy generally, would be inhibited for fear of an attempt to 
compel disclosure before some future tribunal in some context as yet unknown. 
We would ask this Court to bear in mind that fears and inhibitions of this 
sort, particularly on the part of laymen and foreign sources (with whom 
Falk deals regularly) do not ebb and flow as a function of the technical 
distinction between "mere appearance" and "actual testimony". That the 
government may seek to compel disclosures, not that such disclosures will 
actually occur, sets these chilling fears in motion.

- 19 -



IV.
ARGUMENT

I.
THE PROFESSIONAL AND PUBLIC-EDUCATIONAL ACTIVITIES 
MOVANT SEEKS TO PRESERVE ARE PROTECTED BY THE FIRST 
AMENDMENT AGAINST GOVERNMENTAL INTRUSION

The issue before this Court, quite apart from that of the
proper scope of a protective order, is whether any privilege at all

20
attaches to movant's professional activities. This question, to the
extent that it may relate to movant's non-journalistic activities,is
one of first impression. The related question, assuming a privilege,
of whether the government must, in advance of testimony, show a compelling
need for mere appearance before the grand jury was decided affirmatively
in Caldwell v. United States, 434 F.2d 1081 (9th Cir., 1970), cert granted

21
91 S. Ct. 1616(1971).

20. Cf. Caldwell v. United States 434, F.2d 1081, 1083 (9th Cir. 1970), 
cert, granted 91 S. Ct. 1616 (1971): "...before we can decide whether the 
First Amendment requires more than a protective order delimiting the scope 
of interrogation, we must first decide whether it requires any privilege 
at all."
21. This is the clear holding of Caldwell, 434 F.2d at 1089. Judge Jameson's 
concurring opinion agrees with Judge Merrill on the proposition that where a 
privilege attaches, the government could properly be required to show 
compelling need even prior to the issuance of a subpoena. Caldwell, supra
at p. 1092. Clearly the Caldwell inspired Department of Justice guidelines 
for subpoenas to the news media envisage this, fn. 3, at 1091.

- 19A -



A. Movant's Journalistic Activities, Because They Are 
Primarily Concerned With The Subject Matter Of The 
Pentagon Papers, Fall Within The Scope Of Caldwell v, 
United States.

The record before the Court is clear and uncontradicted for
the proposition that Richard Falk's journalistic activities related to
the War entitle him to the kind of protection afforded Earl Caldwell.
See pp. 9-10 , supra. Nor should Falk suffer because his activities have
encompassed so much more than journalism, strictly defined . Indeed
precisely the opposite, for of all his activities, those related to
journalism have directly reached a more diverse kind of audience than his
scholarly and consultative pursuits, and,in fact, were intended to secure
this end. Researchers and academicians have assumed in our society many
of the functions formerly reserved to journalists as social and political 

22
commentators. And where they utilize the mass media to impart their 
commentary and expertise to the public they act within limits long protected 
by the First Amendment. Caldwell, supra, at 1084. The very subject of 
this grand jury investigation has been afforded similar sweeping protection. 
New York Times v. United States, 91 S. Ct. 2140(1971). To argue, as the

22. Cf. Horowitz and Rainwater, "Sociological Snoopers and Journalistc 
Moralizers," 7 Transaction 4,5 (May, 1970): "The intertwinings of journal­
istic and sociological expertise are complex indeed and have been from the 
early days of empirical American sociology." And see Steel, J, infra, at 
fn. 10.

-  20 -



government must in this case, that national interest cannot prevent the 
American public's access to this material but that that same national 
interest somehow proscribes Falk's right to professionally assess its 
significance seems disengen ous.

B. Notwithstanding The Applicable Scope Of The Journalist
Privilege, Movant's Activities As A Professional Scholar
And Author Are Themselves Cognizable Under The First____
Amendment, And, As Such, Are Entitled To The Parameters 
Of Protection Established By Caldwell.

The sum total of Movant's scholarly activities has been a 
virtually unending stream of books, articles, monographs and lectures 
relating to American foreign policy in the context of the Vietnam War.
This work product is impressively recounted in the Falk affidavit, as 
well as the crucial and unique role which confidence and trust have played 
in this effort at "getting at the real facts" (Falk, A, 3) and "the best 
available evidence" (Falk, A. 17). The primary goal of these efforts 
has been to publish this material as widely as possible and in such a way 
as to bring insightful and comprehensive information to professional 
colleagues, the Congress, and the American public. On the record before 
this Court there is no question but that, in his field, Richard Falk's 
writings and commentary are authoritative, and that the subject matter of 
the Pentagon Papers is vitally and intimately related to his work.

It is by now a commonplace that informed scholarship and the
processes of its distribution are protected by the First Amendment:

"...the State may not, consistently with the 
spirit of the First Amendment contract the
spectrum of available knowledge. The right

-  21 -



of freedom of speech and press included not only 
the right to utter or to print, but the right to 
distribute, the right to receive, the right to 
read...and freedom of inquiry, freedom of thought,
and freedom to teach..-- indeed the freedom of the
entire university community...Without these periph^^al 
rights, the specific rights would be less secure." 
(Emphasis supplied).

Each of the steps in this progression from information collection 
to publication and dissemination has been protected by the Court.
The freedom to publish and circulate news has long been established.

24

indeed, in the very context of Richard Falk's concern. New York Times v.
25United States, supra. The freedom to write and the freedom of the

26
public to receive information have more recently been perceived as
distinct rights. Moreover, the information gathering functions of

27
investigators are clearly protected by the First Amendment, and are the

23. Griswold v. Connecticut, supra, 381 U.S. at 482-3. Citations omitted.
24. See, e.g.. Near v. Minnesota, 283 U.S. 713(1931); Lovell v. Griffin, 

303 U.S. 44(1937); Winters v. United States, 333 U.S. 507(1943); 
Talley v. California, 362 U.S. 60(1960).

25. See e.g.. New York Times v. Sullivan, 376 U.S. 254(1964);
Beckley Newspapers Corp. v. Hanks, 389 U.S. 81(1967).

26. See, e.g., Martin v. City of Struthers, 319 U.S. 141(1943); Lamont v. 
Postmaster General, 381 U.S. 301(1965); Stanley v. Georgia, 394 U.S. 
557(1969) .

27. Associated Press v. KVOS, 80 F.2d 575, 581(9th Cir. 1935), rev'd on 
other grounds, 229 U.S. 269(1936). See also Providence Journal Co. v. 
McCoy, 94 F.Supp 186, 195-196(D.R.I., 1950) aff'd on other grounds 
190 F.2d 760(lst Cir. 1951).

-  22 -



factual and constitutional precondition of the ability to publish and 
circulate.

All of these rights take on added import when interpreted
28

in light of the particular needs of the academic community. Mr. Justice 
Frankfurter, in language so apposite to Falk's professional roles and 
the record before this Court that it bears quotation at length, clearly 
recognized this;

"Progress in the national sciences is not remotely 
confined to findings made in the laboratory. Insights 
into the mysteries of nature are b o m  of hypothesis and 
speculation. The more so is this true in the pursuit of 
understanding in the groping endeavors of what are called 
the social sciences, the concern of which is man and 
society. The problems that are the respective preoccupa­
tions of anthropology, economics, law, psychology, 
sociology and related areas of scholarship are merely 
departmentalized dealing, by way of manageable division 
of analysis, with interpenetrating aspects of holistic 
perplexities. For society's good— if understanding be an 
essential need of society— inquiries into these problems 
speculations about them, must be left as unfettered as 
possible. Political power must abstain from intrusion into 
this activity of freedom, pursued in the interest of wise 
government and the people's well-being, except for reasons 
that are exigent and obviously compelling.

These pages need not be burdened with proof, based on 
the testimony of a cloud of impressive witnesses, of the 
dependence of a free society on free universities. This 
means the exclusion of governmental intervention on the 
intellectual life of a university. It matters little whether

28. The Supreme Court has recognized these needs as "almost self- 
evident". Sweezv V. New Hampshire, 354 U.S. 234, 250(1957): "Teachers and 
students must always remain free to inquire to study and to evalute, to 
gain new maturity and understanding; otherwise our civilization will 
stagnate and die."

- 23 -



such intervention occurs avowedly or through action 
that inevitably tends to check the ardor and fear­
lessness of scholars, qualities at once so fragile 
and so indispensable for fruitful academic labor.
Sweezy v. New Hampshire, 354 U.S. 234, 261-262(1957)
(Frankfurter, J, concurring).

This language, flowing as it did from a case involving refusal of a witness
(legislative) to give compelled testimony, is all the more relevent.

In Sweezy, as here, the government offered no evidence that
29

Professor Sweezy had himself, violated the law, but rather justified
30

compulsion with the assertion that he might lead them to others that had.
It is clear that the First Amendment "rests on the assumption

that the widest possible dissemination of information from diverse and
31

antagonistic sources is essential to the welfare of the public." This is 
particularly so when such information is vitally relevent to issues of 
national concern, posed, as with the Vietnam War, in times of

29. 354 U.S. at 261.
30. This Court has expressed an inclination to look to In Re Murtha, N.J. 
Super. Ct., App Div. 7/6/71, for guidance on this question. Murtha is 
discussed, infra, p. 39, but it is well to note here that the existence of a 
First Amendment privilege was found lacking in that case. To the extent that 
Falk protected by such a privilege, as we believe is clearly demonstrated, 
Murtha is not authority for compelling his testimony in the absence of a 
particularized governmental need therefor.
31. Associated Press v. United States, 325 U.S. 1, 20(1945).

Cf. Keyishian v. Bd. of Regents, 385 U.S. 589, 603(1967): "Our 
Nation is deeply committed to safeguarding academic freedom, which is of 
transcendent value to all of us....That freedom is therefore a special con­
cern of the First Amendment ....The classroom is peculiarly the "market place 
of ideas". The Nation's future depends upon leaders trained through wide 
exposure to that robust exchange of ideas which discovers truth..."
(citations omitted).

- 24 -



32
crisis. That this work ought to be encouraged in the university,
and that it ought not be interfered with by governmental intrusion,
is at the heart of the evolution of the legal concept of academic 

33
freedom. Indeed, because of its devotion to scholarship and academic 
inquiry, the university conforms to the "marketplace of ideas" concept 
even more fully than does the public forum. For this reason the danger 
of infringement is particularly circumscribed by the First Amendment,
Sweezy, supra.

As is the case with all constitutional protections,this 
recognition of academic freedom has incorporated within it a judicial 
evaluation that the activities to be protected are so valuable to society 
that a compelling and overriding interest is the condition precedent for 
governmental intrusion upon them. Certain observations about the value 
of academic inquiry, of which Falk's activities are but an example, may 
be useful to this Court. First, empirical academic research, the 
gathering of reliable and relevant infomation, is crucial to its success 
Second, issues which are created, as here, when the government seeks to 
invade the confidentiality necessary to academic inquiry.cafinot be adequately

34

32. As the court.in Caldwell points out, the need "takes on special 
urgency in times of widespread protest and dissent. In such times the 
First Amendment protections exist to maintain communication with dissenting 
groups and to provide the public with a wide range of information about 
the nature of protest and heterodoxy." Caldwell, supra, at 1084-5.
See also Thornhill v. Alabama, 310 U.S. 88, 102(1940); Associated Press v. 
United States, supra, fn. 31.; Garrison v. Louisiana, 379 U.S. 64(1964).

- 25



(Footnotes continued)

33. See, generally, "Developments in the Law of Academic Freedom,"
81 Har\t> L. Rev. 1045, 1048(1968), and sources there cited. This concept 
of academic freedom is reflected not only in recognition of the need for 
such freedom, but also in certain institutional arrangements designed to 
protect it. See, e.g., C. Byse and L. Joughin, Tenure in American Higher 
Education (1959).
34. Certainly Falk's affidavit is replete with references to how crucial 
it is to him, particularly in the context of the Pentagon Papers. E.g,
Falk, A, 17.

Extensive literature supports the societal value of empirical 
research in other contexts. For instance, a National Science Foundation 
commission has noted its relevence to education, engineering, journalism 
law, labor relations, medicine, and public health, mental health and 
social work. Brim(Chairman), Knowledge Into Action; Improving the 
Nation's Use of the Social Sciences (1969). U.S. Department of Health, 
Education and Welfare, Toward a Social Report (1969); Staff of House of 
Representatives Research and Technical Programs Sub. Comm. On Government 
Operations, 90th Cong., 1st Sess., "The Use of Social Research in Federal 
Domestic Programs," 4 Parts (Comm. Print 1967); Orleans, "The Political 
Uses of Social Research," 314 The Annals 28(1971); Lyons, "The President 
and his Experts," 394 The Annals 36(1971); Beckman, "Congressional Informa­
tion Processes for National Policy," 394 The Annals 84(1971); Reicken,
"The Federal Government and Social Science Policy," 394 The Annals 100(1971); 
W. Bateman, An Experimental Approach to Program Analysis; Step Child in 
The Social Sciences? (1969); Holt, "A System of Information Centers for 
Research and Decision Making", 60 Am. Economic Rev. 149(1970).

For these and other sources counsel to Richard Falk are indebted 
to Paul Nejelski, Esq., and Lindsey Miller Lerman, whose soon to be published 
monograph entitled "Protection of Confidential Research Data" has generously 
been made available to us.

- 26 -



framed in terms of the suppression of truth versus the professional
inconvenience which might result. When requests are made for confidential
information, two forms of truth are competing— judicial testimony versus
society's interest in access to competent and accurate information.
The evaluation of a particular request for confidential information must
thus recognize that but for the confidentiality which attaches to a scholar's

35
inquiries, society's interest would not be served. The government's 
ability to close off a particular kind of inquiry by forcing such disclosure 
is clearly an intimidating power, made even more dangerous by the fact that 
it is only likely to be used, or for that matter necessary, when dealing 
with critics or potential critics of government policy. Indeed the

36
particular stiuation of Richard Falk appears an apt lesson in this regard.

35. The peculiar irony of this is that but for this confidentiality, the 
interest of this grand jury, whatever it may be,likewise cannot be served.
By compelling the disclosure of such confidences, and thus insuring that they 
will not be made in the future, a grand jury would in effect choke off its 
own ability to ascertain truth where, not as here, there really a compel­
ling, overriding, and urgent need. See Caldwell, supra, at 1086, fn. 5 and 
accompanying text.

The chilling effect which would be caused by the vulnerability of 
research findings is at least partially aggravated by a growing suspicion 
between the research community, especially academia, and government. 
University criticism of the Vietnam War has emphasized that academia— like 
the news media— represents an independent power which cannot be readily 
manipulated by the government. In addition, the rejection or, at best, 
indifference, with which the reports of Presidential Commissions have been 
received, has discouraged researchers who have worked on or identified with 
these projects. To the extent that compelled grand jury disclosure of 
research confidences acts as a further disincentive, it must be avoided.
See Green, "The Obligations of American Social Scientists", 394 The Annals 
13, 25(1971). See also Caldwell, supra, at 1086.

- 27 -



Footnotes continued

36. Cf., Grosjean v. American Press Co.. 297 U.S. 233, 250(1936); 
"...since informed public opinion is the most potent of all restraints 
upon misgovernment, the suppression or abridgement of the publicity 
afforded by a free press cannot be regarded otherwise than with grave 
concern."

- 28 -



Movant's Professional Activities Are Protected Against This
Grand Jury's Intrusion Unless And Until The Government______
Demonstrates National Interest So Compelling, Overriding, And 
Unique to Movant, That It Outweighs The Public Worth Of His 
Own and Similar Protected Pursuits.

The issue before this Court requires a judicial evaluation of
the strength of the government's objectives and the appropriateness of 

37
its methods. The Court is thus faced with the task of articulating
justiciable standards with which to measure the amount of protection

37 A
Falk ought to be accorded. It is clear, however, that once a First 
Amendment privilege is established, the parameters of protection set forth 
in Caldwell v. United States, supra, ought expressly to be applicable.
This is true regardless of whether Falk's First Amendment privilege 
attaches due to his journalistic pursuits, on the one hand, or his 
activities as a scholar and author, on the other. In fact, this combination 
of roles, fully documented in the record, makes his side of this balance 
weigh even more.

The Court in Caldwell reached its result with full recognition 
of the broad and unfettered scope of inquiry which grand juries have 
traditionally exercised, 434 F.2d at 1085, and Professor Falk likewise 
expresses such respect, Falk, A, 21. Caldwell also found guidance in the

37. Where, as here, the alleged abridgement of First Amendment interests 
occurs as a by-product of otherwise permissible governmental action not 
directed at the regulation of speech or press, "resolution of the issue always 
involves a balancing by the courts of the competing private and public 
interests at stake in the particular circumstances shown." Barenblatt v. U.S.

- 29 -



Footnotes continued

37. (cont.) , 360 U.S. 109, 126(1959); see, e.g., Konigsberg v. State 
Bar of Cal., 366 U.S. 50-57(1961); Bates v. Little Rock, 361 U.S. 516,(1960) 
NAACP V. Alabama ex rel. Pattersen, 357 U.S. 449, 460-467, (1958);
Kalven, "The New York Times Case: A Note on 'The Central Meaning of the 
First Amendment.' " 1964, Sup. St. Rev. 191, 214-16(1964).
37 . As set forth infra, p. 38 , this balancing requires a showing by the 
Government that it has no other sources of information which do not involve 
an "equal degree of incursion upon First Amendment freedoms."

In assessing what "degree of incursion" is here present, the Court 
must look not only to the general nature of the First Amendment freedom 
asserted, but also to its relative strenth in the particular case. Thus, 
the Court in Caldwell found that because of Caldwell's uniqueness, he was 
entitled to a showing of "compelling and overriding national interest." 
Falk's uniqueness to his own profession is at least equal to, if not 
stronger than, Caldwell's; and, correspondingly, the same compelling urgency 
ought to be shown by the Government in order to force his appearance.
Another way of expressing this is to say that the record before this Court 
is at least as narrow as that before the Caldwell court; and the narrowness 
of the record is the strongest reason for affording the protection sought. 
See Caldwell, gupra, at 1090, discussed infra, p. 44

- 30 -



Supreme Court decisions regarding conflicts between First Amendment
interests and legislative investigatory needs, 434 F.2d at 1085-6, and
found, on a record notably similar to the record before this Court, that
the government's burden in the balancing process simply had not been met.
In the absence of compelling and overriding need, then, the government
cannot be permitted the power to "appropriate" protected "investigative
efforts" to its own behalf— to convert a witness, after the fact, "into

38
an investigative agent". 434 F.2d at 1086.

In order to demonstrate such need the government must, at the
least, establish the following:

(1) The information sought must be demonstrably relevant
to a clearly defined, legitimate subject of governmental inquiry. The
reason for demanding clear definition of the subject of the investigation
is plain. Like the requirement that legislation which may trench on

39
First Amendment interests meet "strict" standards of specificity, insis­
tence on strict definition of the scope of an investigation assures that

38. This Court might bear in mind that the particular problem of protecting 
academic and scholarly investigative confidences has already been recognized 
and planned for in other contexts. One notable example are the guidelines 
issued by the American Council on Education for their ^tudy of campus unrest; 

"5. /the above named emplyees of the projecjt/ will explicitly 
undertake to protect all confidential information, whether 
recorded or not, that i.s revealed to them. They will specifically
agree to refuse to divulge confidential information to any______
person or group, including investigative agencies, committees,
and courts of law, even if they or their records should be_______
subpoenaed'̂

- 31 -



Footnotes continued.

38. (cont.)

"6.....we advise and counsel all researchers in
this study /presumably not including those named in 
paragraph 5, supra/ to refuse to release or provide 
any confidential information, even if directed to do 
so by a subpoena or other court process from a legis­
lative body or court of law. We will support with all 
all legal means any such refusal."

Emphasis supplied. Advisory Committee A.C.E. Study on Campus Unrest, 
"Statement on Confidentiality, Use of Results, and Independence," 165 
Science 158, 159(July 11, 1969).

These guidelines are cited advisedly, as the investigation of campus 
unrest would be quite likely to expose evidence of crimes which the 
government would obviously be entitled to prosecute.
39. E.g. Smith v. California, 361 U.S. 147, 151(1959); Cramp v. Board of 
Public Instruction, 368 U.S. 278, 287— ^288(1961); NAACP v. Button, 371 U.S. 
415, 432-433(1963); Ashton v. Kentucky, 384 U.S. 195, 200(1966).

- 32 -



the governmental body whose processes may intrude upon the First 
Amendment has focused both upon its purposes and upon the question of 
whether those purposes require the intrusion. See Mr. Justice Harlan, 
concurring, in Garner v. Louisiana, 368 U.S. 157, 203(1961). The 
requirement is a safeguard against overbroad and formless investigations 
which —  like overbroad and formless laws —  "lend themselves too readily 
to the denial of /First Amendment_/ . . . rights." Dombrowski v. Pfister,
380 U.S. 479, 486(1965). See particularly, Liveright v. Joint Committee,
279 F. Supp. 205, 215, 217 (M.D. Tenn. 1968). Finally, the requirement of 
strict definition of the subject under investigation is indispensable to 
enable first the subpoenaed witness and his counsel, and later the courts 
themselves, to determine the point of proper balance between investigative 
need and the privacy protected by the First Amendment. For all these 
reasons, indefiniteness in the scope of governmental inquiry has consistently 
been regarded as fatal to investigations in the First Amendment area.
Watkins v. United States, 354 U.S. 178(1957); Sweezy v. New Hampsire, supra 
Scull V. Virginia ex rel. Committee on Law Reform and Racial Activities,
359 U.S. 344(1959); Liveright v. Joint Committee, supra.

And, once the subject of an investigation has been adequately 
defined, the use of compulsory process is required to be confined to matters 
strictly relevant to that subject. Ordinarily, of course, the command that 
grand jury subpoenas seek only evidence relevant to the jury's inquiry is 
administered with considerable elasticity. E.g., In Re Grand Jury Subpoena

- 33 -



Duces Tecum, 203 F. Supp. 575, 579(S.D.N.Y. 1961). But that degree of 
tolerance may not be indulged whereinquiry touches First Amendment interests, 
for in these latter areas compulsory disclosure is forbidden unless it is 
"demonstrated to bear a crucial relation to a proper governmental interest 
or to be essential to the fulfillment of a proper governmental purpose." 
Gibson v. Florida Legislative Investigation Committee, supra, 372 U.S., at 
549. See DeGregory v. Attorney General of New Hampshire, 383 U.S. 825(1956)

(2) It must affirmatively appear that the inquiry is likely to 
turn up material information, that is; (a) that there is some factual basis 
for pursuing the investigation, and (b) that there is reasonable ground to 
conclude that the particular witness subpoenaed has information material 
to it■ In the First Amendment area, even relevant inquiries may not be pur­
sued without some solid basis for belief that they will be productive. For 
example, Jordan v. Hutcheson, 323 F.2d 597, 606 (4th Cir. 1963), condemned 
a legislative investigation which purported to inquire into certain criminal 
activities but also resulted in the disclosure of constitutionally protected 
associations, saying that courts "can and should protect the activities of 
the plaintiffs . . .  in maintaining the privacy of their First Amendment 
activities against irreparable injury unless and until there is a reasonably 
demonstrated factual basis for assuming that they are guilty of the offenses 
which the Committee is investigating."

- 34 -



"of course, a legislative investigation —  
as any investigation —  must proceed 'step by 
step', . . . , but step by step or in totality, 
an adequate foundation for inquiry must be laid 
before proceeding in such a manner as will substantially 
intrude upon and sev%ely curtain or inhibit constitu­
tionally protected activities or seriously interfere 
with similarly protected associational rights."
(Gibson V. Florida Legislative Investigation Committee, 
supra, 372 U.S., at 557.)
(3) The information sought must be unobtainable by means 

less destructive of First Amendment freedoms. This requirement derives 
from the pervasive First Amendment principle of the "narrowest effective 
means," recognized in cases of compulsory disclosure of protected associa­
tions, e.g., Shelton v. Tucker, 364 U.S. 479, 488(1960); Louisiana ex rel. 
Gremillion v. NAACP, 366 U.S. 293, 296-297(1961), as in others, e.g., 
Elfbrandt v. Russell, 384 U.S. 11, 18(1966). Simply stated, the principle
is:

"that a governmental purpose to control or prevent 
activities constitutionally subject to state regula­
tions may not be achieved by means which sweep un- 
nec^sarily broadly and thereby invade the area of pro­
tected freedoms. .../T /he power to regulate must be 
so exercised as not, in attaining a permissible_end^ unduly 
to infringe the protected freedom. ... '. . ./E/ven though 
the governmental purpose be legitimate and substantial, that 
purpose cannot be pursued by means that broadly stifle 
fundamental personal liberties when the end can be more 
narrowly achieved.' " (NAACP v. Alababa ex rel. Flowers, 377 U.S, 
288, 307-308(1964).)

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As applied to this grand jury investigation, this principle leads plainly
to the conclusion that the jury may not compel Falk's testimony, intruding
into and threatening destruction of his confidential relationships, if
it can find out what it wants to know from other sources that do not

40
implicate First Amendment concerns.

40. Compare In Re Murtha, 40 USLW 2052, discussed infra, p. 39 
We think that Garland v. Torre, 259 F.2d 545 (2d Cir. 1958), recognizes 
this point. The case arose out of a defamation action brought by Judy 
Garland against the Columbia Broadcasting System, predicated on the 
complaint that CBS had made libelous statements against Miss Garland and 
affirmatively induced their publication in newspapers and elsewhere. A 
critical instance of the alleged defamation was a newspaper column by 
Marie Torre containing statements about Miss Garland attributed to a CBS 
"network executive." In pretrial proceedings, the two CBS executives whom 
Miss Garland had named in her deposition as the likely sources of the Torre 
story were deposed and denied all knowledge of it. Counsel for Garland 
then deposed Marie Torre and inquired concerning her source; Miss Torre 
refused to answer, clai'ming a First Amendment privilege; and she was held 
in contempt.

The Second Circuit (per Judge Stewart, now Mr. Justice Stewart), 
affirmed the contempt commitment, but only after accepting "at the outset 
the hypothesis that compulsory disclosure of a journalist's confidential 
sources of information may entail an abridgment of press freedom by imposing 
some limitation upon the availability of news." 259 F.2d, at 548. "What 
must be determined is whether the interest to be served by compelling the 
testimony of the witness in the present case justifies some impairment of 
this First Amendment freedom."(Ibid) The court held that it did because the 
Torre testimony "went to the heart of the plaintiff's claim" (I^., at 550) 
in a case that was being prepared for trial. Torre was plainly the only 
available source of the information sought from her, and accordingly the 
Second Circuit emphasized "that we are not dealing. . . with a case where
the identity of the news source is of doubtful relevance or materiality"
(Id., at 549-550). The force of the Garland court's reservation is the 
more apparent with regard to grand jury proceedings, for grand juries inquire 
only to determine probable cause; and they therefore have no compelling 
need for cumulative evidence —  evidence from more than one source —  which, 
for a trial jury, might spell the difference of persuasion.

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40.(cont.)

Finally, Garland v. Torre appears to recognize —  as we think 
it must consistently with Shelton v. Tucker, supra; Gibson v. Florida 
Legislative Investigation Committee, supra; and DeGregory v. Attorney 
General of New Hampshire, supra —  that governmental attempts to compel 
disclosure of confidential associations may sometimes be forbidden by the 
First Amendment even though the protected evidence is sought under pro­
cedures and circumstances that meet the requirements we have
described in paragraphs (1), (2), and (3), in text supra. This is implicit
in the Second Circuit's approach of particularistic "balancing" of First 
Ttoiendment freedoms against the justifications for compelled disclosure, 
and in the court's recognition that Garland did not involve "the use of 
judicial process to force a wholesale disclosure of a newspaper's confi­
dential sources of news" (259 F.2d., at 549). The proviso implies, at the 
least, a prohibition of compelling Falk to make disclosures whose broadly 
destructive effect upon First Amendment freedoms palpably outweighs the 
value of the uses to which a government investigation body may put them.
Cf. United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217(1967).

As to this latter point, see also fn. 37A, supra.

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These established principles dictate the test that we set 
forth in the motion to quash originally filed with this Court, namely, 
that the government must show:

(1) Reasonable grounds to believe that Richard Falk has 
information, which is

(2) Specifically relevant to an identified episode that this 
Grand Jury has some factual basis for investigating as a possible violation 
of designated statutes within its jurisdiction; and

(3) That the government has no alternative sources of the40A
same or equivalent information whose use would not entail an equal degree
of incursion upon First Amendment freedoms.

Is there, then, a sufficient governmental showing of compelling
and overriding need to force Richard Falk's appearance before the grand

41
jury? We have only a government representation that the grand jury is 
investigating the alleged commission of a variety of statutory offenses all 
of which presvimably relate to the Pentagon Papers. This broad assertion 
plainly does not meet the test set out above.

First, let it be noted that the government is seeking to compel 
Falk's appearance for the apparent purpose of testifying about the distri­
bution and publication of materials whose distribution and publication may

41. Made, it should be noted, not in this case but on August 19, in the 
matter of Stephen Popkin, who was later excused by the Government.
40A. See, infra, fn. 37A

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not, consistent with the First Amencinent, be suppressed. New York Times v.
United States, supra. Nor has there been any demonstration that there has
been committed any crime other than that alleged to Daniel Ellsberg, or
that, assuming there has, Falk has some direct and immediate knowledge of
it, or that, assuming he does, such information would not be forthcoming
from someone else. In Re Murtha, N.J. Super. Ct., App Div. 7/6/71, in
which this Court has expressed interest, is instructive in these regards:
A murder had clearly occurred. Sister Murtha had voluntarily admitted to
the police that a direct, unambiguous admission had been made to her, and

42
she was the only person to whom the information had been given. And,
apart from all of this and most important of all, she had demonstrated no
First Amendment or other testimonal privilege which might protect these 

43
revelations.

42. In Re Murtha. in this regard, is similar to Garland v. Torre, fn. 40 
supra.

Worth mentioning in this context is the fact that, according to news­
paper accounts, zerox copies of all or a portion of the Pentagon Papers 
were distributed all over the country, with their "Top Secret" designation 
removed. Even if the government asserted, or in fact could prove, that some 
of these copies had come into Falk's possession, this is no evidence what­
soever that he was a party to or had any knowledge of who originally dis­
tributed them, or, depending on how he received them, who his own source was, 
For the government to invade Falk's First Amendment privilege in pursuit of 
such marginal ends seems, quite frankly, an attempt to cut off his nose to 
spite their face.
43. Cf. Barenblatt v. United States, 360 U.S. 109, 129-132(1959) where, 
again, no testimonial privilege was found. Barenblatt, involved legislative 
investigation of alleged Communist infiltration of educational institutions. 
It is clearly distinguishable from Falk's situation in that Barenblatt made

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43. (cont.)

only the broadest of objections to the right of Congress to inquire into 
his "political" and "religious" beliefs or any "personal or private affairs" 
or "associational activities". 360 U.S. at 114. We are not arguing, as 
Barenblatt did, that a witness is immune from process merely because he is 
a teacher. Falk has particularized in great detail the narrow degree of 
his concern and has made the kind of record on this issue that was found 
lacking in Barenblatt("Finally, the record is barren of other factors which 
in themselves might sometimes lead to the conclusion that the individual 
interests at stake were not subordinate to those of the state". 350 U.S. 
at 134.).

- 40 -



In The Absence Of Compelling And Overriding Need, Movant 
May Not Be Compelled To Appear Before The Grand Jury At 
All, As There Is No Testimony He Can Give Which Would Not 
Be Within The Bounds Of The Protective Order Required Under 
The Rule Of Caldwell.

Caldwell holds that where a First Amendment privilege attaches,
the government must show a compelling and overriding national interest

44
for testimony prior to the witnesses appearance. In making this deter­
mination the Court was clearly influenced by the witness' sworn assertion 
that there was nothing to which he could testify that was not protected 
by the District Court's protective order. 434 F.2d at 1089. Movant 
believes that the record in this case is virtually identical in its sum 
to that made by Mr. Caldwell and that, accordingly, he is entitled to

44. The Court of Appeals in Caldwell went further than the District Court, 
as District Judge Zirpoli had held only that Caldwell was entitled to a 
protective order prior to testifying. On appeal, the Court held that once 
it is found that the witness is entitled to such an order, and he asserts 
that the order protects virtually all of his potential testimony, "the 
cost to the public of excusing his attendance is so slight" as to obviate the 
necessity of mere appearance. 434 F.2d at 1089.

- 41 -



45
findings of fact similar in nature to District Judge Zirpoli's and a 
disposition on the "mere appearance" issue similar to that made by the 
Ninth Circuit. In support of this contention. Movant asserts under oath

45. Judge Zirpoli's order made inter alia, the following factual findings:
"(1) That the testimony of Earl Caldwell sought to 

be compelled by the subpoena...will relate to 
activities of members of the Black Panther Party;

"(2) That Mr. Caldwell's knowledge of those activities 
derived in substantial part from statements and 
information given to him, as a professional 
journalist...within the scope of a relationship of 
trust and confidence;

"(3) That confidential relationships of this sort are 
commonly developed and maintained by professional 
journalists, and are indispensable to their work of 
gathering,analyzing and publishing the news."

"(4) That compelled disclosure of information received by 
a journalist within the scope of such confidential 
relationships jeopardizes those relationships and 
thereby impairs the journalist's ability to gather, 
analyse and publish the news...

"(5) That the Government has shown no compelling and
overriding national interest in requiring Mr. Caldwell 
to give testimony before the grand jury that would 
invade and jeopardize his confidential relationships..."

On the basis of these findings an order was entered, providing, in pertinent 
part:

"(1) That if and when Earl Caldwell is directed to appear before 
the grand jury pursuant to the subpoena of March 16, 1970, 
he shall not be required to reveal confidential associations, 
sources,or information received, developed or maintained by 
him as a professional journalist in the course of his 
efforts to gather news for dissemination to the public 
through the press or other news media;

- 42 -



45. cont.
"(2) That specifically without limiting paragraph (1),

Mr. Caldwell shall not be required to answer ques­
tions concerning statements made to him or informa­
tion given to him by members of the Black Panther 
Party unless such statements or information were 
given to him for publication or public disclosure "

provided, however, that:
"the Court will entertain a motion for modification of 
this order at any time upon a showing by the Govern­
ment of a compelling and overriding national interest 
in requiring Mr. Caldwell's testimony which cannot be 
served by any alternative means . . . "

-  4 3  -



46
that he has read the protective order entered by Judge Zirpoli and that 
there is no testimony he could give which would not be protected by a 
similar order were one to be entered in this case. Falk, A, p. 21

The kind of damage which may be done by Falk's appearance is 
outlined at pp. 17-19 , supra. The broad aspects of this threat are 
discussed at Caldwell, 434 F.2d at 1087-1089. The holding of Caldwell 
on this point is explicitly narrow, and the terms of its narrowness, set 
forth at 1090, are worth our attention: Richard Falk, like Caldwell, is 
clearly unique in his field. He enjoys an incomparable trust and confidence 
in dealing with matters of extreme sensitivity and national importance.
To the extent that an individual qualifies for the protection now sought 
on his behalf, he clearly stands at the top of the list.

46. Although it was not asked to do so, the Ninth Circuit specifically 
affirmed the terms of this order.

- 44 -



II.
SILVERTHORNE LUMBER CO. v. UNITED STATES, 251 U.S. 385 
(1920) AND 18 U.S.C. SECTIONS 2510(11), 2515, 2518(10) 
AND 3504 REQUIRE THE GOVERNMENT TO AFFIRM OR DENY THE 
USE OF WIRETAP AND/OR OTHER ELECTRONIC SURVEILLANCE 
UPON THE ALLEGATION BY A WITNESS THAT SUCH SURVEILLANCE 
HAS IN FACT OCCURRED.

Movant has moved for a hearing purusant to 18 U.S.C., Section 
3504, and specifically requested that:

(1) If the Government refuses to affirm or deny Movant's 
allegation, the subpoena be quashed; or

(2) If the government affirms Movant's allegation, the 
subpoena be quashed; or

(3) If the Government denies Movant's allegation. Movant 
be permitted an opportunity to present evidence that the Government's 
denial, while no doubt made in good faith, is inaccurate.

The Government has neither affirmed nor denied Movant's allega­
tion, a procedure required by those Circuits which have upheld witness 
standing under Section 3504, independent of and prior to whatever evidence 
the witness may wish to introduce. In Re Egan, Third Circuit, en banc,
filed May 28, 1971, Slip Opinion, at p. 33; In Re Evans, D.C. Circuit,

46
filed July 23, 1971.

46. The opinion filed in the Evans case was not paginated. This holding 
appears on the last page of Judge Bazelon's opinion.

- 45 -



III.
CONCLUSION

For all of the above stated reasons. Movant respectfully 
requests that his subpoena be quashed.

Respectfully submitted.

/s/ Jack J. Levine
Jack J. Levine 
1427 Walnut Street 
Philadelphia, Pennsylvania 19102 
215-563-1388

Thomas G. Shapiro 
73 Tremont Street 
Boston, Massachusetts 02108 
617-227-8420

Attorneys for Movant

- 46 -