Lawler v. Alexander Record Excerpts

    IN THE

Supreme Court of the United States

No. 70-57
U N ITED  STATES O F  A M E R IC A ,

Petitioner,

V.E A R L  CA LD W ELL,
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE NINTH CIRCUIT

B R IE F O F  TH E N A T IO N A L  PRESS PH O TO G RAPH ERS A SSO C IA T IO N , IN C ., A S A M ICU S C U R IA E ,IN SUPPORT O F  RESPONDENT
Roger A . Clark1730 K Street, N.W. Washington, D .C . 20006
Attorney for The National Press 
Photographers Association, Inc.

.V3:,L.n9too. 0  C T H IF L  P R E S S  202 • 393 0625



IN THE

Supreme Court of the United States

No. 70-57
UNITED STATES O F A M E R ICA,

Petitioner,

V.E A R L  CALD W ELL,
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE NINTH CIRCUIT

B R IE F O F  THE N A T IO N A L PRESS PH O TO GRAPH ERS A SSO C IA T IO N , IN C ., AS AM ICUS C U R IA E ,IN SUPPORT O F RESPONDENT
PR ELIM IN A R Y  STATEM ENTPursuant to the written consent of all parties, the National Press Photographers Association, Inc. (“ NPPA” ) submits this brief amicus curiae in support of respondent Earl Caldwell (“ Caldwell” ).NPPA is in full accord with the position of The Washing­ton Post Company and Newsweek, Inc. that newsmen must



be accorded an absolute privilege to refuse to disclose any information obtained in their professional newsgathering activities. The purpose of this brief is not to reargue the legal authorities in support of this position, but to inform the Court of the compelling reasons why such absolute pro­tection is particularly important to news photographers.
IN TEREST OF THE AM ICUS CU R IA ENPPA is a nonprofit membership corporation, founded 25 years ago for the purpose of advancing press photo­graphy and protecting the rights of its members-more than 3,800 news photographers, television cameramen and others engaged in presenting the news pictorially to the general public.NPPA is vitally concerned that the newsgathering activi­ties of its members will be substantially impaired if  they are not protected from compulsory testimony in judicial pro­ceedings. Indeed, while NPPA has chosen to file a brief in this case because it presents in sharpest focus the extent of the protection needed, one of NPPA’s members is Paul Pappas, a television cameraman who is the petitioner in 

Pappas V. Massachusetts (October Term 1971, No. 70-94), where the identical issue is raised.
DISCUSSIO NSince the invention of the camera early in the 19th cen­tury, press photography has played an increasingly vital role in the dissemination o f news and other information of inter­est and concern to the general public. This is because press photography brings home to the public, in dramatic, graphic fashion, events and conditions which could not adequately be portrayed through words alone. The famous Jacob Riis photographs dramatically emphasized the conditions of pov­erty in New York City at the turn of the century. Riis, 

How the Other H a lf Lives (Harvard Univ. Press, 1970). World War I was unforgettably documented in the news



3photographs of the time, as were the social, political and economic upheavals which followed hard upon that conflict. The depression. World War II, the horrors of Hiroshima and Nagasaki, Korea and, most recently, Vietnam and our domestic social confrontations have all been the sub­ject of extensive news photography. With the development and growth of television, the impact of news photography as a means of informing the public has become increasingly significant and immediate.In this period of social unrest, where an atmosphere of mutual mistrust has developed between law enforcement agencies and various militant social groups, it is particularly necessary that those who are generally regarded as neutrals are permitted unfettered access to the “ battlefield”  for the purpose of reporting the events to the public. I f  there is a constant threat that newsmen and photographers will be subject to compulsory disclosure at the behest of Federal and state prosecutors, their ability to photograph and report the news in areas of public interest is truly in jeopardy.Unless dissident groups are confident that photographers will not become instruments of law enforcement, they will not allow photographers the access to their activities which is so essential if  the public is to be fully informed. The problems of the press photographer are, if anything, more critical than those of the reporter. Unlike the reporter, who can write of an event after the fact with reasonable accuracy, the news photographer must, through advance notice, be in a position to photograph events as they trans­pire.There is also the question of personal safety. News photographers and cameramen, laden with cumbersome, deli­cate and expensive equipment, are easily identifiable as such, and are, therefore, in an even more precarious posi­tion than newsmen if participants in public events believe, with cause, that newsmen can be forced to become adverse witnesses. No one can guarantee that a cameraman in the midst of a riot will end up uninjured or with his equipment



undamaged. A t best, newsgathering can involve precarious situations, and some photographers have suffered severe personal injury while photographing civil disturbances. But until now, at least, there have been few instances when rioters or others engaged in newsworthy activities^activi- ties sometimes illegal or the subject of subsequent legal proceedings—have deliberately attacked cameramen or dam­aged their equipment because of the fear that the camera­man might be forced to testify against them. In those instances while militant groups have concluded that a camerman may become a witness against them in court, however, the reaction has been quite different—as attested by the affidavit of Min Yee.*Thus, it is extremely important, particularly in view of the widespread publicity attached to the sudden upsurge of subpoenas issued to newsmen and news photographers, for this Court to make it clear, at this time, that newsmen and news photographers will never be required to testify unwill­ingly as to information they have professionally acquired.
CO N CLU SIO NIt is conceivable that the immediate needs of the particu­lar newsmen involved in the cases now before this Court may be served by something less than the privilege we es­pouse. We nevertheless urge the Court to grasp the oppor­tunity presented by these cases and, in the interest of First Amendment freedoms, to announce an absolute newsman’s privilege sufficient, in all instances, fully to dispose of the broad problem which the present cases pose.Respectfully submitted,R O G E R  A . C L A R K

Attorney fo r The National 
Press Photographers 
Association, Inc.

*See affidavit of Min S. Yee, verified March 23, 1970 (App. pp. 
48-50).