386 F.Supp. 639 (D.D.C. 1974), Misc. 74-128, United States v. Mitchell

Docket Nº:Misc. 74-128
Citation:386 F.Supp. 639
Party Name:United States v. Mitchell
Case Date:December 05, 1974
Court:United States District Courts, District of Columbia
 
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Page 639

386 F.Supp. 639 (D.D.C. 1974)

UNITED STATES of America

v.

John MITCHELL et al. In re NATIONAL BROADCASTING COMPANY, INC., et al.

Misc. No. 74-128.

United States District Court, District of Columbia.

Dec. 5, 1974

Order Jan. 8, 1975.

Page 640

James Neal, Associate Spec. Prosecutor, Peter M. Kreindler, Counsel to Spec. Prosecutor, Washington, D.C., for United States.

Floyd Abrams, New York City, Donald J. Mulvihill, Washington, D.C., for applicants National Broadcasting Company, Inc., American Broadcasting Companies, Inc., CBS Inc., and Radio Television News Directors Association.

Joseph A. Califano, Jr., Richard M. Cooper. Washington, D.C., for applicant Warner Communications, inc.

Herbert J. Miller, Jr., Raymond G. Larroca, William H. Jeffress, Jr., Washington, D.C., for former President Nixon.

Ronald L. Plesser, Washington, D.C., for Amicus Reporters Committee for Freedom of the Press.

MEMORANDUM AND ORDER

GESELL, District Judge.

Several television and radio broadcasters noted in the caption moved pursuant to Rule 47 of the Federal Rules of Criminal Procedure requesting copies of those portions of taped conversations initially recorded in former President Nixon's offices which were subpoenaed, received in evidence, and played to the jury in this widely publicized criminal case still on trial before Judge John J. Sirica. Copying would be accomplished at applicants' expense with the aid of the Clerk of Court from the evidentiary tapes. There would be no recording in the courtroom. Applicants propose to broadcast at least portions of the tapes locally and nationwide over both television and radio.

The reproduction of trial evidence received in tape from for subsequent public use raises an issue of first impression in this District and the Clerk of Court, James F. Davey, properly seeks guidance from the Court. No published precedent directly in point has been cited or found in any other jurisdiction. The matter has been treated as a miscellaneous proceeding and separately assigned at Judge Sirica's request. All defendants and the Special Prosecutor have been served and the Court has before it various briefs and affidavits, including an affidavit from the Clerk of Court explaining some of the mechanical and administrative considerations presented. Former President Nixon, by his attorneys, opposes the motion. The Reporters' Committee for Freedom of the Press has been granted permission to file a brief amicus. 1

Applicants claim a constitutional right to reproduction of the tapes under the First Amendment to the Constitution. This claim is wholly without merit. A public trial is taking place, all media, including applicants, have been present, and, by order of the trial judge, provided with earphones to enable their representatives to hear exactly what the jury heard when the tapes were actually played in the courtroom. There were no restraints placed on their subsequent reporting. Indeed, the contents of the tapes have been fully reported and written transcripts were made available to all media to assure reasonable accuracy.

The Supreme Court has repeatedly held in recent years, although admittedly by split votes, that members of the press are not constitutionally guaranteed a 'right of access' greater than that afforded the general public. Pell v. Procunier, 94 S.Ct. 2800, 2810 (1974); Saxbe v. washington Post, 94 S.Ct. 2811, 2815 (1974); Branzburg v. Hayes, 408 U.S. 665, 684-685 (1972); Estes v. Texas, 381 U.S. 532, 540 (1965). See also, Address of Mr. Justice Stewart,

Page 641

'OR OF THE PRESS,' YALE LAW SCHOOL SESQUICENtenNial convOCation, Nov. 2, 1974, at p. 9:

So far as the Constitution goes, the autonomous press may publish what it knows, and may seek to learn what it can. But this autonomy cuts both ways. The press is free to do battle against secrecy and deception in government. But the press cannot expect from the...

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