Zurcher v. Stanford Daily – Oral Argument – January 17, 1978

Media for Zurcher v. Stanford Daily

Audio Transcription for Opinion Announcement – May 31, 1978 in Zurcher v. Stanford Daily

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Warren E. Burger:

We will hear arguments next in 1484 Zurcher v. The Stanford Daily and the related case.

Mr. Collins, I think you may proceed whenever you are ready.

W. Eric Collins:

Mr. Chief Justice and may it please the Court.

These consolidated cases come to you on writ of certiorari to the Ninth Circuit which affirmed a summary judgment affording declaratory relief in the federal Civil Rights Act case.

The case involves search warrants and attorney’s fees.

I appear on behalf of the District Attorney and his deputy and I shall state the case to you and attempt to argue the search issues and the fees issues insofar as they affect prosecutorial and judicial immunity.

Mr. Robert Booth Jr. here will appear on behalf of Chief Zurcher and police petitioners and will argue those fees issues.

He will take ten minutes, I would like Mr. Chief Justice to reserve a couple of minutes for rebuttal, thank you.

On Friday, April 09, 1971, the Medical Director of Stanford University Hospital called upon the police to remove a group of demonstrators who had barricaded themselves in Stanford University Hospital.

Now, the main action and the press and the police was on the west side of building.

Though the demonstrators had barricaded the doors, chained them shut and papered over the glass panels.

The police attempted to force the doors and were driven back by a shower of heavy missiles, several were injured.

Eventually, ropes were brought, one door was dragged partly open.

The chains were cut and the police got in to it.

Now, they tried at first of course unsuccessfully to persuade these people to move peacefully, to put this fact.

Now, that was on the West side; on the East side there were also doors.

These two have been barricaded and papered over preventing police identification.

When the police broke in the West side suddenly the doors on the East side were opened and all the demonstrators erupted out.

Now, on the East side there was a squad of eight men, four were facing to the rear where there were sympathizers in the hall and four were facing the glass doors.

They attempted to hold the battle on line and were successful for 4 or 5 seconds, but were clubbed to the ground.

All nine were injured, three survived.

They could not identify their attackers.

That was on Friday.

Now, the following Sunday, a special edition of the Stanford Daily, the student newspaper was published.

That showed the clip, that a photographer or one of them of that newspaper had been in a position where he could have seen and photographed the East side and that is what we are concerned.

The police went to the District Attorney.

District Attorney Brown asking for a search warrant.

Brown had had previous experience with this newspaper.

In the 1969 rights, he had subpoena the editor and one of the staff.

The subpoenas had been unsuccessful, the editor testified to the effect that a few of the photographs were available, the others have been misplaced as stolen.

W. Eric Collins:

The defense have had full access to the photographs and he had done the best he could.

Another staffer had the temerity to testify that the photographs were dangerous to have around and some had been sent to Tokyo for safekeeping.

Now, this was the District Attorney’s experience at that time.

He decided with the officer to apply for a search warrant, a search warrant pursuant to California law which specifically authorizes the seizure of evidence from any person or place, provided of course, there is probable cause in the rest.

Judge Forbes of the Palo Alto Municipal court issued the warrant.

He authorized a search for film, negatives and photographs.

The warrant was executed at 5.30 on Monday afternoon.

The officers asked for, but did not get cooperation in producing the photographs.

After waiting a few minutes, they searched the photo lab and the main in office which was in some considerable disarray.

They searched the desktops, unlocked drawers, filing tubs and I add, no materials were read.

As far as possible they returned everything to the place where it was found.

During this search, the officers were subjected to harassing clients and they were photographed many times.

No claim of confidentiality was made by any member of the staff at any time to any person.

The search lasted 15 minutes.

Nothing was seized.

One month later, in May 1971, the Stanford Daily filed suit in federal District Court seeking injunctive and declaratory relief.

Affidavits were filed.

Depositions were noted.

But before the depositions of the Stanford Daily’s witnesses could be taken, the motion for summary judgment was granted and declaratory relief was afforded.

This was in 1972.

The District Court laid down two new rules; one, in all third party searches that is to say searches of persons who are not suspect of crime, in addition to the historical requirements of particularity and specificity and probable cause, the affidavit must also contain, probable cause to believe that the materials would be destroyed or removed.

All but otherwise a subpoena was impractical, at once.

There was a special rule where First Amendment values are involved, this time said the Court then must be a clear showing that first, the materials are important and secondly the restraining order would be futile.

In 973, attorney’s fees were awarded by separate opinion on a private Attorney General’s theory.

In 1974, these fees were set at $47,500.

In 1977, the Ninth Circuit adopted the search opinion, but they used the 1976 Civil Rights fees Awards Act, Attorney’s Fees Awards Act to authorize the grant of fees.

And then confirmed the District Court’s calculation of $47,500.

Rehearing and suggestions for hearing en banc were denied and these petitions coming forth.

Those are the facts of the case.

Your Honors, it is our essential position that the District Court and indeed now counsel, did not realize the extent of the rule they fashioned.

Warren E. Burger:

If Mr. Collins —

W. Eric Collins:

Yes sir.

Warren E. Burger:

If subpoena duces tecum must be sought first for these other preliminaries and we decide against you and that would be the end of the case.

Would it not?

Because there was not any subpoena duces tecum sought and there was not any allegation of the kind that the District Court prescribed?

W. Eric Collins:

It is certainly true Your Honor, that in the affidavit presented to the Judge Forbes, there was no sworn statement of the impracticality which in fact attended to this case.

Warren E. Burger:

Then, we have to go on to decide whether the public statements of the Stanford Daily made previously that they would not aid any prosecution or preserve any evidence or submit any evidence that would help the so called political prosecution, we would have to then move onto that question?

W. Eric Collins:

Yes, sir.

May I remind this court that it reads as follows; negatives which can be used to convict protesters will be destroyed.

The Daily feels no obligation to help in the prosecution of the students for crimes related to political activity.

That was the thought.

Now, in all fairness to the date I mentioned, and and afterwards that policy was somewhat amended.

Now, it apparently is the standing policy as to destroy all potentially incriminating, unpublished photographic material.

I might add that even on those, the board was split and as to these particular events involving the injuries and the damages caused, the board split 50-50, 50% it warranted and 50 unwarranted.

Thurgood Marshall:

Mr. Collins if they destroyed immediately then you can’t, what are you going to do then?

W. Eric Collins:

Your Honor, it is our hope that the Stanford Daily will not set a precedent for the remainder of the media, if they do, destroy it immediately, we obviously cannot get it, you are quite right.

But if we were to take the disarray of the officers as indicative of the efficiency –.

Thurgood Marshall:

I do not think that has anything to do with this case?

W. Eric Collins:

Very well, Your Honor.

Thurgood Marshall:

I just think that the duces tecum should do it without a search warrant; should it not?

That would be normal right?

W. Eric Collins:

Your Honor it is true the first —

Thurgood Marshall:

And then there would be motion to quash and you could have it up.

Everybody would have his day in Court?

W. Eric Collins:

In any event, Your Honor they are going to have the day in Court.

Thurgood Marshall:

They do not have the day in Court if you get an ex parte search warrant to come in and search.

W. Eric Collins:

May I distinguish between two situations, Your Honor.

Thurgood Marshall:

Well, do so.

W. Eric Collins:

In the one, it is undoubtedly true.

If Your Honor’s point is that is that not prior, full, adversary hearing to the taking of those photographs then of course Your Honor is correct, but may I add this, it is undoubtedly true, there will be an adversary hearing on the return.

W. Eric Collins:

The question facing it —

Thurgood Marshall:

And then you do not need a warrant anyhow?

W. Eric Collins:

Your Honor there are in this case, considerations that would indicate a warrant should be used.

First, as the affidavit shows, there are staffers who have a floating relationship I think it is a fair characterization with the paper.

Now, as to them, whether they are bound by this or not, we do not know.

There are the stringers and so on.

Secondly, what I am suggesting is this, that I may say, I will do ‘x’ but efficiency in doing so is a matter that may or may not occur.

It may or may not.

Thurgood Marshall:

I do not know of any injunction, or anything else that can control all the mankind’s actions?

W. Eric Collins:

I thoroughly agree with Your Honor.

In fact, I would say this that any attempt by any Court in advance to exercise that kind of restraint over the press should be opposed.

We should not do it.

Of course not.

Warren E. Burger:

If you wish to reserve any time for rebuttal and allow your colleague 10 minutes is it?

W. Eric Collins:

Yes Your Honor.

Warren E. Burger:

This would be the time to think about that?

W. Eric Collins:

Your Honor, of course.

Warren E. Burger:

Mr. Booth.

Robert K. Booth, Jr.:

Mr. Chief Justice and may it please the Court.

I represent Chief Zurcher and the four other police petitioners in this matter.

Our contention is two fold.

First that no claim has been stated or proven against these officers under Section 1983, and secondly, that whether or not such a claim has been stated or proven.

The judicial and prosecutorial immunity should extend to the Court’s agents in carrying out lawful Court orders.

At the very least, the special circumstances here make it manifestly unjust and unfair to award the attorney’s fees against these officers.

First of all even though the respondents in this case sought an injunction and were granted declaratory relief, there still is a necessity to prove elements of tort in order to hold them liable.

Any duty which these petitioners owed to the respondents has been fully met, the Chief Zurcher did not order, did not supervise and was not even aware of the acts complained of in this suit.

Neither was District Attorney.

William H. Rehnquist:

But would you concede that they are entitled to costs that the prevailing plaintiffs were entitled to costs in an injunctive action such as this where you say one of your clients was not even aware of it?

Robert K. Booth, Jr.:

Not, as against Chief Zurcher, Justice Rehnquist he is not the proper party to this case.

He is not at all. —

William H. Rehnquist:

Well, supposing someone is found to be the proper subject of an injunction because of his participation in an unconstitutional activity or his failure to properly supervise employees, something of that sort, so that an injunction issues although he really did not have any knowledge of acts for which — on the basis of the injunction, if an injunction issues against him is the plaintiff entitled to costs?

Robert K. Booth, Jr.:

I think under those circumstances, yes Justice Rehnquist, but I do not believe under section 1983 that there is any such theory of the Respondeat Superior.

William H. Rehnquist:

Well, so then your argument about it or the impropriety of awarding attorney’s fees is based on your contention that the plaintiffs should not have prevailed on the merits against your clients?

Robert K. Booth, Jr.:

No, it is based on the lack of a cause of action against my clients and also on where I believe should be an extension under the circumstances here, of the judicial and prosecutorial immunity because these officers were acting as agents of the Court carrying out the command of the Court —

William H. Rehnquist:

The judicial or prosecutorial immunity is an affirmative defense which might not disentitle the plaintiffs to an injunction or declaratory judgment even though it might disentitle them to damages and if they were under those circumstances entitled to declaratory judgment would they also be entitled to cost or not.

Assuming that they did state a claim under 1983 and should have prevailed under declaratory judgment action, but should not have gotten damages because of the immunity defense?

Robert K. Booth, Jr.:

It is my recollection that it would be entitled to costs Justice Rehnquist.

However, we are talking about a great difference in degree here.

The cost and the suit of the type you described are substantially less and not the type of burden, nor do they carry with it the stigma that can award the attorney’s fees against his clients.

William H. Rehnquist:

Well, that is the problem we had after Edelman agaisnt Jordan, the old term preliminaries case, and this Court had said that you could award cost against the state, you cannot award damages against the state and either questions, are attorney’s fees more like costs or they more like damages?

Robert K. Booth, Jr.:

I think, when they reach this type of level and the circumstances under which they arise, I believe that they are more like damages.

I would further point out that one of the additional police officers should not be held liable here either, he furnished an affidavit which was the truth.

No one has contested that.

And again later on he participated in the search, that his acts violated no duty of these respondents —

Thurgood Marshall:

Are all of these points litigated, the responsibility of each person that you were talking about?

Robert K. Booth, Jr.:

Yes, they were Your Honor.

Thurgood Marshall:

And they were held to be liable?

Robert K. Booth, Jr.:

Yes, they were Your Honor.

Thurgood Marshall:

But what are you arguing about now?

Robert K. Booth, Jr.:

I am arguing that they were improperly held —

Thurgood Marshall:

You want us to —

Robert K. Booth, Jr.:

They were held —

Thurgood Marshall:

Do you want us to reverse that hold, do we have to roll it back to the older stuff — ?

Robert K. Booth, Jr.:

I believe that is the case and I think you can do that by finding that there was no cause of action stated under Section 1983.

Thurgood Marshall:

But I am not setting to separate the attorney’s fees of the finding I think you have to give both of them that is all I was saying?

Robert K. Booth, Jr.:

Well, I think Mr. Burger —

Thurgood Marshall:

Can I separate them?

Robert K. Booth, Jr.:

Yes, I believe you can Mr. Justice Marshall.

Thurgood Marshall:

And what authority they have?

Robert K. Booth, Jr.:

I think that there is — regardless of whether a cause of action was stated.

Robert K. Booth, Jr.:

I think that the special circumstances of this case, would make it unfair to penalize these petitioners even if they are liable for the search here with attorney’s fees.

Thurgood Marshall:

And what statute is unfair statute?

I mean I can’t —

Robert K. Booth, Jr.:

Well, it arises out of interpretation of the statute and I think the 1976 Civil Rights Act to amendments.

Thurgood Marshall:

Do you want me to use the Chancellor’s foot on this?

Robert K. Booth, Jr.:

I am sorry sir, I did not get.

Thurgood Marshall:

Do you want me to use the Chancellor’s foot on this?

Robert K. Booth, Jr.:

Yes, sir.

Well, in a sense I can —

Thurgood Marshall:

How can you get me more than that?

Robert K. Booth, Jr.:

Well, I do not believe that under the circumstances here where attorney’s fees were awarded in 1971, five years before the Act was amended and the circumstances of this case with summary judgment, never an opportunity to present defenses like good faith, and probable cause that it would be unjust to apply attorney’s fees regardless of the outcome of the remainder of the case.

We would point out that the Court acts only through its agents.

In this case it is police officers and that under the circumstances they should be put in the same category here as court clerks, bailiffs and other agents of the Court.

They did not do anything improper.

They got an order of the Court.

They served in a proper and appropriate fashion.

They do not have the kind of facts that lead to the aggravated situations in which all of us would be offended.

These officers acted in a proper fashion as agents of the Court.

In fact Judge Finkelman(ph) dismissing the Municipal Court judge from this case found, “Nothing but good faith” in discharging his judicial responsibilities and the judge and I would suggest to the Court that that type of finding should be extended in this case to these police officers.

They acted in good faith also carrying out the command of the Court.

Apart from any immunity, would they not then have a Wood v. Strickland kind of defense?

Robert K. Booth, Jr.:

In part, yes Your Honor, which rather surprises, the Court has so far decided as available to any defendant suit under 1983.

Thurgood Marshall:

But do you take position that summary judgment prevented that?

Robert K. Booth, Jr.:

Well, I think that is part of it and I think also it was a misinterpretation of the applicability of 1983 and also completely ignoring the immunities which should be applied in this case.

We have cases like Pierson v. Ray and Rose v. Huston.

There are several federal cases Imbler v. Packman which I think should be applied in the situation here and we have cited all of those.

Warren E. Burger:

Does this record show how the Court arrived at this fee of $47,500 say, days, hours of service or anything of that kind?

Robert K. Booth, Jr.:

Yes, it does Your Honor and it also —

Warren E. Burger:

How many days were they in the Court in connection with this injunction?

Robert K. Booth, Jr.:

I do not recall directly but there is and it was based on an hourly rate and there is also premium involved, there was — for minor, there is a total of about three days in Court —

Warren E. Burger:

Three days in Court?

Robert K. Booth, Jr.:

Yes part days Your Honor, and these also a premium attached as I recall.

Warren E. Burger:

Premium, do you mean punitive, I am not sure?

Robert K. Booth, Jr.:

Well, the trial judge recognized that perhaps there was value of services in excess of the amount attributable to hourly rate, although as I recall the attorneys for the respondent sought even more, sort of a contingent nature type fee, in other words.

I think I have made the points I was to make, thank you Your Honor.

Warren E. Burger:

Very well.

Mr. Falk.

Jerome B. Falk, Jr.:

Thank you Mr. Chief Justice and may it please the Court.

This case is in a somewhat curious posture when we receive petitioners’ opening briefs.

It struck us that their quarrel on the merits of this case was with the District Court’s opinion and not so much with us and we had gone to Court to obtain protection against further searches of a newspaper.

In situations where subpoena would suffice.

The petitioners in their brief barely touch upon this aspect of the case with its First Amendment overturns and aim their canons at the District Court’s opinion which they perceive to create a rather broad per se rule barring third party searches in all cases of all sorts of people.

We dealt with those problems and the practical law enforcement kinds of problems which they perceive to arise from that opinion in our reply brief and which we suggested that the power of the police to search non-press third parties is at least subject to the rule of overall reasonableness and that five factors which we summarized on page 41 of our brief made this search in this case unreasonable on these facts as demonstrated to the magistrate.

What should a police officer do in the Ninth Circuit after affirmance of the District Court’s opinion?

Jerome B. Falk, Jr.:

Well, I can concede that the District Court’s opinion which this Court now has before it, stated a broader rule than we advocate as governing this case.

My question is what should a police officer do in light of what has happened in the Ninth Circuit?

Jerome B. Falk, Jr.:

Well, he must present in light of what has happened —

In any third party search.

He must inform with the District Court’s opinion which is affirmed by the Ninth Circuit?

Jerome B. Falk, Jr.:

Well, he must at this time Your Honor yes.

William H. Rehnquist:

How are we to determine or more appropriately, how is a police officer to determine when it is a third party search and when it is a criminal suspect search.

Neither party, as I recall cites the Hoffman against the United States in its brief, but there is language in Hoffman that says the police are not required to guess at their payroll, the precise moment of which they have probable cause to arrest a suspect risking a violation of Fourth Amendment if they guess wrong?

Jerome B. Falk, Jr.:

I think the question you asked me Mr. Justice Rehnquist goes to the difference between the formulation of the District Court which I concede is somewhat broader than ours and our position is set forth in part 2 of our brief.

What we say is that the subpoena with the government and the Solicitor General’s brief calls that the subpoena first rule, what we say is if that applies where the evidence submitted by the police to the magistrate affirmatively shows that the person is a non-suspect.

Let me just give a couple of examples that I think will bring this into focus, beyond this case, plainly the evidence in this case showed that the evidence submitted to the magistrate in this case showed that the Stanford Daily had this evidence by virtue of the fact that it was a neutral party gathering news.

William H. Rehnquist:

But those are easy cases.

Supposing the affidavit shows that there is reason to believe that there is secreted on the premises of the Stanford Daily 500 pounds of marijuana?

Jerome B. Falk, Jr.:

I think that is in easy cases well, and it goes in the other direction because the possession of marijuana itself is a crime, no one could be a non-suspect, I think in possession of a quantity of marijuana —

William H. Rehnquist:

Do you know there is nothing in the affidavit that suggests there is any knowledge on the part of any Daily employee?

Jerome B. Falk, Jr.:

I think so and I think further that that may not give sufficient evidence for a conviction, but it certainly raises the inferences, if someone in possession and control of those premises has knowledge that a crime is being committed there.

Jerome B. Falk, Jr.:

I think really that what Newman case was the easy case is the typical case.

The typical case in which evidence is sought from third parties is a case such as this where evidence is in the hands of somebody, it might be a bank, it might be a lawyer’s office, it might be an employer.

Thurgood Marshall:

Let me give you an easy one.

A unnamed co-conspirator, not a policeman, who got to figure out in that?

Jerome B. Falk, Jr.:

No, I do not think so Your Honor if —

Thurgood Marshall:

Well, what would he do?

Jerome B. Falk, Jr.:

What we say —

Thurgood Marshall:

But what would he do with one?

Jerome B. Falk, Jr.:

I think he would proceed with search warrant application.

Thurgood Marshall:

He will go to a real good lawyer and pay him?

Jerome B. Falk, Jr.:

He would get a warrant application, I think.

Thurgood Marshall:

No, he is given the warrant against an unnamed conspirator, and now is that a third party or not, is he supposed to determine that?

Jerome B. Falk, Jr.:

I do not think he is supposed to determine that.

We do not contend this.

Thurgood Marshall:

Why not?

Jerome B. Falk, Jr.:

We contend only that where it affirmatively appears from the material known to the magistrate that the third party is in fact not involved in crime.

Thurgood Marshall:

I am not talking about the magistrate, I am talking about the police here who has handed the piece of paper?

Jerome B. Falk, Jr.:

We do not ask police officers to display warrants.

I take it that it is their obligation to enforce warrants and that is why no damages were cited in this case.

Thurgood Marshall:

That is why you want counsel fees against the policeman in this case?

Jerome B. Falk, Jr.:

We want counsel fees against the policeman to be paid out the public funds pursuant to an indemnity statute in a case in which the transaction cost of litigating not anything relating to the primary conduct.

The cost of litigating in this matter and having this matter determined has to be borne by someone and Congress has said, where it belongs?

I do —

I thought we were defending the Ninth Circuit and the District Court’s judgments only insofar as they applied to a press, where the third party is the press?

Jerome B. Falk, Jr.:

I did want to start there because I think that is obvious case.

Well, you just cover the rest of the — do you say any third, you just were arguing that you were defending something more — the need for something more than probable cause when any third party is –?

Jerome B. Falk, Jr.:

We have said two things in this Court.

If I may just to summarize them in our statement more broadly.

We say with respect to the press, the police must proceed by subpoena, absent a reason to believe that there is an impractical situation such as the risk of distraction and secondly we say with respect to non-press searches that there are cases in which a search will be unreasonable and that depends on an analysis of all other facts and we have indicated five factors in our brief which made this one unreasonable even without regard to the special First Amendment considerations.

None of those factors would apply, I take it where the police are simply in doubt about who the third party is or perhaps have some suspicions that do not rise to probable cause.

Jerome B. Falk, Jr.:

Our position, our submission on that matter would permit a third party search in that situation.

Now, if I may return to the situation involving newspaper —

But does not the Ninth Circuit rule?

Jerome B. Falk, Jr.:

Our first point is and our second point is a narrower statement of the case of a Ninth Circuit announced.

I make no apologies to that.

I think that some reflection of the matter has suggested that — but that is all that is really presented on this.

One can count your hypotheticals on other facts that involve problems that I do not think we are prepared to discuss intelligently on a hypothetical basis.

I think the District Court and the Court of Appeals were right ultimately but I do not think I have to convince you of that for this judgment to be sustained.

This case involved the newspaper and the interesting thing about the briefs in this case is that the parties almost pass in the night on that issue.

We spent all of our time discussing the facts of this case in the legal consequences therefrom with the First Amendment by that is required in cases where First Amendment interests hang in the balance.

The Solicitor General, on Saturday he filed a brief to which we filed a response yesterday in which the Government concedes that there are no law enforcement interests that are impaired by a rule requiring the police to proceed by subpoena, when seeking material from the press.

So we can put that issue aside, no substantial law enforcement issues are presented in any of the briefs in this case as to that part of the case and that is what this case is about.

Now, I would like to stress that we do not question, the issue that was raised in Branzburg concerning the duty of a press to produce evidence when it is sought by law enforcement.

No issue of privilege is presented in this case.

The question is not whether an evidence may be obtained from a newspaper but how that evidence is to be obtained.

It is a question not of substance, but of procedure.

That distinction to my mind answers the objection in the arguments of petitioners but we seek some special privilege from the press and we do not.

Those cases such as Powell and the Sacks on which petitioners relied for the proposition that the Court has declined to give special privileges to the press involve claims of substantive rights or claims of substantive exemptions from duties that other citizens have.

All of this case involves is a question of process, by what process shall evidence be obtained from the the press when it is sought.

Warren E. Burger:

I have inquiry.

Do you think the process should be any different for the San Francisco Chronicle or the First National Bank of the San Francisco?

Jerome B. Falk, Jr.:

Well, as I indicated we would regard for the reason set forth in part 2 of our brief a search of the First National Bank as unreasonable if the factors set forth in our brief were present that is if there were no reason to believe that the First National Bank were involved in any law.

Warren E. Burger:

I think if that is there any difference between a newspaper and anyone else on earth in this respect?

Jerome B. Falk, Jr.:

There is one difference.

It is engaged in a First Amendment activity and this Court had said —

Warren E. Burger:

But does not everyone have First Amendment activity rights?

Jerome B. Falk, Jr.:

Everyone has First Amendment Rights, but not everyone is engaging as their business activity.

A bank has some First Amendment Rights to be sure, but the business of banking is not a First Amendment activity and no First Amendment interest of a banker are impaired —

Warren E. Burger:

When your theory is that if you are using the First Amendment Right more often or more frequently than you have some greater right than a person who uses it less frequently?

Jerome B. Falk, Jr.:

Our theory is that if the entry into your premises will impair the exercise of your First Amendment Rights and there is another way to go about the same objective and to accomplish the same interest of Government the other way the less burdensome means ought to be pursued.

Warren E. Burger:

I still do not know whether you think a bank or the San Francisco Chronicle knows a different kind of a First Amendment Right?

Jerome B. Falk, Jr.:

My bottom line is that they both have the same right to be free of entry in this kind of a situation but the analysis has to be different because the First Amendment requires a stricter scrutiny of the process than it would be applicable to an ordinary business which a bank is. So my answer is that there are different analysis that are applicable.

William H. Rehnquist:

What if an individual had simply gone out and taken pictures that the Stanford Daily took and an effort was made to get a warrant to get his negatives because of his thought that he would probably burn them too.

Would he be subject to the same protections that you say the Stanford Daily as by virtue of the freedom of press?

Jerome B. Falk, Jr.:

I think it would depend on knowing some more facts than that.

Certainly, the kinds of First Amendment injuries are less in that situation because in that situation, the individual is unlikely to have around other materials.

William H. Rehnquist:

What if you were a scholar working on a criticism of the present administration?

Jerome B. Falk, Jr.:

I think if all of those facts were before the magistrate I think the answer the answer would have to be yes.

I think it is important to understand the kinds of injuries that this sort of a search —

Would you think were clergymen wanting the pictures of the preparation of a sermon the next Sunday, in connection with First Amendment rights?

Jerome B. Falk, Jr.:

Well, I would have great difficulty with that search for the reasons set forth in our Fourth Amendment reasonableness analysis and I think it would be unreasonable to do what if that were all the facts that there were —

Warren E. Burger:

There were clergymen engaged in the First Amendment business at least every Sunday?

Jerome B. Falk, Jr.:

Surely, yes.

I think that the difference may be in the other kinds of First Amendment injuries of time, if I could just turn to what sorts of injuries we identify here, I think perhaps I can make the point more clearly.

When the police entered into newsroom in execution of a search warrant, several things happened.

One, they cutoff as Mr. Justice Marshall indicated earlier.

They cutoff absolutely the right to address a court on the question of whether the police have a right to get those particular documents that they were seeking, whether the arguments against protection would arise from whatever rights are provided by Branzburg or under a state shield law.

The right to be heard on that is cutoff.

Secondly, the files in records of the newspaper and whatever conferences, whatever unpublished stories, whatever drafts of editorials may be in the premises all of these are laid bare to inspection of the police and that does distinguish this kind of search from some of the hypotheticals that we have been discussing in the last few minutes.

That kind of injury, that kind of exposure and a needless one of that causes a special injury in the context of a newspaper search.

Thirdly, the entire newsroom is disrupted, the precise amount of time that this search took is somewhat in dispute but it took at least 15 minutes and may have taken as long as 45, but what —

William H. Rehnquist:

But that is not different than a bank’s operations being disrupted, is it?

The First Amendment does not guarantee where the newspaper operations physically in the sense that they will be subject to less burden of law enforcement in that sense so long as there is no censorship connotation.

Jerome B. Falk, Jr.:

I take it that the bank would be disrupted and I there say that the business of banking would be as devastated as can be, if the police were executing search warrants on a regular basis in the bank.

I have no doubt that that is true and I think that under most circumstances an execution of a search warrant in a bank for this kind of purpose would be unconstitutional as an unreasonable search under the Fourth Amendment.

Thurgood Marshall:

If you hold up the International wires and any big bank in the country of 15 minutes –?

Jerome B. Falk, Jr.:

Chaos.

Thurgood Marshall:

Chaos plus.

Jerome B. Falk, Jr.:

I think that is right.

Now —

Warren E. Burger:

Just go back to Justice Blackmun’s question for a moment in relation to your last point, if the subpoena or the search took place in parsonage the files of the minister including confidential memorandum about the emotional and marital troubles of his — now many confidential things might be equally there would that not be true?

Jerome B. Falk, Jr.:

I think it is true and I think that the search would have to be —

Warren E. Burger:

If the clergyman is entitled to no less protection than the San Francisco Chronicle or whatever?

Jerome B. Falk, Jr.:

I fear that I may have created the impression that I think it would be proper to search the clergyman.

I only mean to say that in the case where someone is engaged in a First Amendment activity then if the clergyman is where that were First Amendment interest are at stake and are impaired by a search the case for unreasonableness is stronger, but certainly there are other situations.

Take the search of the psychiatric clinic at Stanford which occurred in this case and it was performed by some of the same petitioners and it is in the record.

They searched the Stanford psychiatric clinic files because they had subpoenaed the medical records of a patient and were impatient to get them.

There were some concern that the doctor was going to make a motion to quash before the subpoena became do and before a motion to quash could be brought on for hearing they marched in armed with a search warrant and searched —

Warren E. Burger:

Is that the search before us now?

Jerome B. Falk, Jr.:

That is in the record and it got into the record because we moved for an injunction on the basis of the fact that the petitioners have done it again and the facts of that are in the record and it is an example of the kind of danger that exists here.

They marched right through and they looked at the files of other patients.

I do not think there is any evidence that they read them but they had access to them and the other patients have no assurance now of confidentiality about their own file.

Certainly the fact that the other patient’s names are there.

The fact they were being treated at the psychiatric clinic is now —

Can I ask you a question or two about the District Court’s opinion was on October 05, 1972.

Is that that the declaratory judgment that is appealed or what is judgment that is being appealed?

Jerome B. Falk, Jr.:

There are three opinions of the District Court, the one you identify is the only one on the merit.

Did he ever enter a declaratory judgment or is the opinion the declaratory judgment?

Jerome B. Falk, Jr.:

No, there is a judgment, for some reason when the petitioners cause the brief to be prepared.

The appendix to be prepared it was not printed but it is in the clerk’s transcript.

There was a judgment entered in about 1974.

Is that in the record somewhere?

Jerome B. Falk, Jr.:

Yes, it is and perhaps before I will advise —

The only thing I found is the judgment of September 1973 in which they deny your motion for an injunction?

Jerome B. Falk, Jr.:

Yes there is a judgment.

It is not like you might have lost and I wonder if they applied for fees?

William H. Rehnquist:

On page 73 of your petition there is a judgment filed July 23, 1974 that looks like — it might be what you would want —

Jerome B. Falk, Jr.:

That is the petitioners’ petition.

That must be the judgment it is I think in Exhibit one of the petitioners and it was in 1974 —

Before you go on, May I ask you, who made the motion for summary judgment, I do not recall?

Jerome B. Falk, Jr.:

We did Your Honor.

Is that motion opposed?

Jerome B. Falk, Jr.:

Yes, it was.

There were extensive briefs prepared in argument.

I do want to respond very briefly to the suggestion that there is anything in this record that would support an inference that the Stanford Daily would have destroyed evidence following receipt of a subpoena.

That is an unfortunate slur.

It has no support in the record.

The first thing that ought to be said about it is that there was absolutely nothing before the magistrate, absolutely nothing at all to support such a contention in a way of competent evidence and as a matter of fact the two editorials about which I will have more to say in just a moment were not before the magistrate there was no evidence to show that they were.

The evidence that is in the record consists of the uncontradicted statements, sworn statements of some of respondents who said that the policy of the Daily was not to destroy any evidence that was covered by a subpoena.

That has never been refuted.

There is the brown affidavit which counsel refers which contains some hearsay statements that are conclusionary, lack of proper foundation, which the District Court properly refused to consider but they were never even before the magistrate and that really leaves —

William H. Rehnquist:

Who had the burden of proof on this question where there was a summary judgment?

Jerome B. Falk, Jr.:

Well, I think that the answer to that question Mr. Justice Rehnquist is that, would have been shown to the magistrate and that all of this really is not properly considered at this stage of the proceeding.

William H. Rehnquist:

So the District Court should not have entertained or looked at any of these affidavits at all?

Jerome B. Falk, Jr.:

Well, it did say that they were irrelevant.

The District Court of course can not control what parties submit in the way of affidavit, so that my answer is two fold, one, it is irrelevant and two to the extent of which to consider it because it informs the adversary of this case, the record is uncontradicted, that the Daily was law abiding and would not —

William H. Rehnquist:

No, but if the Daily had the burden of proof on a motion for summary judgment the defending parties in a lawsuit are not bound by the affidavits of interested parties?

Jerome B. Falk, Jr.:

Well, they had an opportunity to submit affidavits of their own, but there was something else.

There were the editorials and I think that they far from proving the point that petitioners would make and then prove exactly the opposite and I think Justice Marshall’s question highlighted it.

The editorials which counsel originally, an excerpt which very much distorts their meaning.

If read in full and they are in the record and I invite the Court to read them, they are not long.

I invite the Court to read them, they are pages 117 to 120 of the record.

A careful statement with which the Court may or may not personally agree but it is a measured and reasoned statement.

Written prior to Branzburg at a time when questions of journalist privilege were very much uncertain.

Actually, the law of the Ninth Circuit was the other way from Branzburg.

The editorials said in effect, in an effort to discourage police subpoenas as we are not going to retain photographs once they have been used.

My wife has suggested to me that this is exactly like the sticker which were put in cabs and buses on a routine basis, saying that driver only carries $5 in change, there’s not much point in holding that.

And that is what these editorials both before and after the search said and that is all they said.

There is absolutely no evidence in this record and it is not —

Thurgood Marshall:

But the Court on the question of evidence what evidence was there that linked the Chief to this?

Jerome B. Falk, Jr.:

I am sorry I could not hear.

Thurgood Marshall:

Was not the Chief one of the defendants, the Chief of the police?

Jerome B. Falk, Jr.:

Yes.

Thurgood Marshall:

What evidence was before the Court that linked him to this?

Jerome B. Falk, Jr.:

The Chief was a defendant because he was in charge of the police department and we alleged that he had ratified the search and was prepared to do it again if the circumstances arose that was never disputed.

The way this issue came up Mr. Justice Marshall is that after summary judgment —

Thurgood Marshall:

I mean , he is now stuck with $47,000?

Jerome B. Falk, Jr.:

There is indemnity statute.

He is not stuck personally.

This award is rendered against him as official capacity which under California law will be payable out of public funds.

Thurgood Marshall:

But why you do not make California employment?

Jerome B. Falk, Jr.:

I do not think we can do that and they were not proper parties of course but that is what they, but they will pay — actually it is the county and the city and I would appreciate that.

May I ask you a question?

Jerome B. Falk, Jr.:

Yes, of course.

That the policy of the Stanford Daily that complaint alleges that the staff would consider itself free in the absence of service of a subpoena or other proper judicial process to destroy any materials in its possession and that the answer you gave Mr. Justice Rehnquist earlier, I take it you would not destroy — I think if the question included heroin, you would not destroy well, I will ask you this, would you destroy evidence of a crime as distinguished from heroin, the possession of which itself may be a crime?

And the statement contains no limitation as now destroy any evidence?

Jerome B. Falk, Jr.:

And the statement has to be understood in the context in which it was addressed.

The reference was to materials gathered in the course of preparing a newspaper.

May I ask you?

Of course they would not destroy evidence of that nature.

Let us assume you had a picture of the commission of a crime.

For example, in banks they take pictures regularly not only of robbery, but of murder committed in a bank, and there have been pictures taken of the actual pulling of the trigger or the pointing of the gun and pulling of the trigger.

There is a very famous one related to the assassination of President Kennedy.

What would the policy of the Stanford Daily be with respect to that?

Would it feel free to destroy it at any time before a subpoena had been served?

Jerome B. Falk, Jr.:

Literally read, the policy of the Daily requires me to give an affirmative answer.

I find it hard to believe that, in an example such as that, that the policy would have been carried out.

It was not addressed to a picture of that kind or in that context.

Well, I am sure you are right.

I was just getting to the scope of your theory?

Jerome B. Falk, Jr.:

Our —

What is the distinction between the pictures Justice Powell described and the pictures they were thought to have?

Jerome B. Falk, Jr.:

Well, it simply is a distinction that —

It is having police officers instead of the President.

That is the only difference?

Jerome B. Falk, Jr.:

Well, it is somewhat more serious crime, but the proposition concerned to which this editorial statement was addressed was the concern that their files would be routinely taken advantage of by many people including but not limited to police.

Others have been known this, other privately we can say also subpoena in press.

He was attempted to have that award.

I think the relevant point of this editorial for the purposes of this case, of course is not whether it is a wise editorial policy which I understand many papers have, but that is not — the point is that it was not an announcement that they would destroy evidence in the face of a subpoena.

It was quite the opposite.

It was an announcement that you should not subpoenas because we do not intend to keep these materials long enough for subpoena to be useful for, do not subpoenas

Warren E. Burger:

Suppose the chief of police bearing in mind that we were talking about not 1978 but 1972, 1971 having had that at the trial come to his attention, issued an order to staff or prosecutor.

With respect to these people who wrote that editorial, do not wait for subpoena duces tecum to a search warrant–

Jerome B. Falk, Jr.:

Well, I do not understand that —

Warren E. Burger:

Do you think that editorial would lead a reasonable man to believe that maybe a search warrant — summary procedure was essential to get the evidence?

Jerome B. Falk, Jr.:

I understand that both subpoenas and search warrants are summary procedures in the sense that both can be obtained very quickly, both are obtained ex parte and both take effect the moment that they are served.

Now, I do not think there is any time advantage as to a subpoena.

Warren E. Burger:

Well, there is quite a difference between the time?

Jerome B. Falk, Jr.:

That is the relevant difference and that is why one hurts like the devil and the other is one that the press can —

Warren E. Burger:

Well, the subpoena duces tecum does not require the recipient to turn the material over to the police officer who serves it?

Jerome B. Falk, Jr.:

No, it requires them to bring it in —

Warren E. Burger:

For sometime a week or two weeks later?

Jerome B. Falk, Jr.:

It may be a day —

Warren E. Burger:

Or a day but sometime later?

Jerome B. Falk, Jr.:

But the policy of the Daily was to honor a subpoena and if one was —

Warren E. Burger:

Where do we find that out?

Jerome B. Falk, Jr.:

It is in the records —

Warren E. Burger:

In relation to that editorial?

Jerome B. Falk, Jr.:

Yes, I am sorry not in the editorial.

I admit that the editorial does not say that but the only evidence on the subject in the record was in the form of affidavit submitted after the search.

Jerome B. Falk, Jr.:

Of course, the editorial was not before the magistrate either.

I think that is the point.

This magistrate issued this search warrant without any reason and I think counsel has conceded this, without any reason to be concerned that the daily might destroy evidence.

I had nothing to do with what was before the magistrate.

All the magistrate was told was here’s some evidence and we want to go get and there’s probable cause to believe if they will be useful —

William H. Rehnquist:

And until judge Packham wrote his opinion that was a perfectly good grounds for issuing a warrant?

Jerome B. Falk, Jr.:

Yes, I do not say that the magistrate was in bad faith or anything of that nature.

Warren E. Burger:

But he was in good faith?

Jerome B. Falk, Jr.:

He did.

He said he was in good faith and we have never contended otherwise but the point is that on this record, that is all that was before the magistrate and I think that is all that could ever have been before the magistrate and almost any newspaper search, is that one can imagine.

If there ever is a case in which there is reason to believe that the newspaper would destroy the evidence the rule of the courts below would permit a search warrant to issue and we have no quarrel with that.

I want to stress that although the conceptional issues that have been discussed this afternoon are fascinating at core of this case are law enforcement problems that do not exist.

There are problems, I concede that there are problems with —

William H. Rehnquist:

There are real problems that exist in the procedure you suggest.

Someone subjected to a subpoena duces tecum has usually several days to respond.

He can argue whether he had custody of the stuff that he was subpoenaed.

If the Court rules that he has to produce it, he can get writ of mandamus to the Court of Appeals.

You can delay it by as much as a year or two years, if it goes by the subpoena rule as compared to the search warrant process?

Jerome B. Falk, Jr.:

I think there are two answers to that.

At least in California subpoenas can be made returnable on extraordinarily short terms.

The next day if that is appropriate.

Secondly, if there is a motion of some kind to quash the subpoena, there really are only two possibilities that seems to me – one is that the motion is not well taken and surely courts are able to deal with that situation by summarily denying them if there is a situation or urgency.

If the motion is well taken and there is something to be adjudicated, that is a very poor excuse for getting a search warrant and overwriting the opportunity to have that heard in an orderly way.

William H. Rehnquist:

Take a look at how long it took the Danisio (ph) cases to proceed from the District Court in Illinois through the Seventh Circuit through this Court and that really was all an argument about whether a particular thing was subject to a subpoena or not?

Jerome B. Falk, Jr.:

I grant that Mr. Justice Rehnquist, but I would respectfully say that if there is that kind of a case which ultimately this Court found that it appropriate to review and it would be inappropriate to render that moot by allowing a search warrant, but I may say this, that if there is a case in which the procedural hurdles are too great and the need for speed is genuine, then I take it that a search warrant will be indicated because in that situation a subpoena will be shown to have been impractical.

I see that my time is up Mr. Chief Justice thank you.

Warren E. Burger:

Mr. Collins, you have about six minutes.

W. Eric Collins:

Thank you Your Honor.

I should refer to the matter brought up by counsel which is of course filing late briefs.

As this Court knows the United States filed a brief, late Saturday we received it sometime around 6 o’clock on Sunday and then Mr. Falk with a remarkable intelligence filed a brief last night I believe, we have received it at about 6 o’clock last night.

Warren E. Burger:

You may have if you have that mind the opportunity to submit a response and comment?

W. Eric Collins:

Thank you Your Honor that was my request.

Your Honor to make some of these points, we are faced with an opinion, the opinion contained two rules we say you must read out that opinion.

That is our position.

That is what the police faced.

That is what we faced.

That is what law enforcement faces, that is what Court faces, not what Mr. Falk writes now, on that score alone, these opinions must be reversed and let me go further.

The subpoena is not a summary —

He defends the judgments below with respect to the press completely?

W. Eric Collins:

No, Your Honor no.

He does not?

How is that?

W. Eric Collins:

Well, he retreats on several grounds.

First – the judgment below contains no distinction between evidence or may I use the discredited term mere evidence —

Whatever you say in California it’s alright.

W. Eric Collins:

Thank you Your Honor.

Mere evidence and my authorities would not behead it — and contraband, fruits or instrumentalities.

Now, we retreat from the rule below and say it should not apply to instrumentalities, fruits or contraband at one — Second, the clear showing aspect and the important material that we retreat from that is no longer required.

That drops out too?

W. Eric Collins:

That drops out too.

Your Honor I do agree with it.

It is difficult to discover who is on first in this case.

We have now a suggestion that if the warrant itself should it happen itself demonstrate that there is no connection and these are indeed clergyman engaged in preparing sermons for Sunday morning use only, but then and only then does this rule apply.

We have to decide whether a judgment stands up–

W. Eric Collins:

Precisely.

He certainly defends the judgment.

W. Eric Collins:

Well, Your Honor you are best judge for that.

Well, it certainly does not suggest that the judgment be reversed.

W. Eric Collins:

Not in so many words.

In any kind of words like, I mean, the judgment should be affirmed.

W. Eric Collins:

Your Honor, I have only six minutes, I gladly agree with you.

Warren E. Burger:

You have only three-and-a-half?

W. Eric Collins:

Pardon Your Honor.

Warren E. Burger:

Three-and-a-half.

W. Eric Collins:

Three-and-a-half.

thank you.

Mr. Collins, just one question if I may?

W. Eric Collins:

Yes.

Do we have any case or controversy before us that involves anybody except the newspaper?

W. Eric Collins:

From the beginning Your Honor we had severe doubts whether there is a case or controversy and the case cited by the United States in the brief of Ashcraft, of 431 US, we have much difficulty in —

Let the very most, we have a case involving a newspaper with nothing else?

W. Eric Collins:

At the most you have a case involving a student newspaper yes.

And the case involving mere evidence, and either case involving contraband or anything like that?

Absolutely true.

We do not have a damage claim, we do not have an injunction, we do not have —

W. Eric Collins:

You do not have a damage, do not have an injunction.

One other question about the attorney’s fees – does their fee award include the two opinions on the issue of fees one, whether they get them and secondly, how much — does the fee award include the payment for the time spent in getting the fees awarded?

W. Eric Collins:

My answer is yes, it includes that plus what was referred to as the contingent nature of the services rendered for which an extra $10,000 was added off

And of course it probably includes compensation for the argument about all the non newspaper aspects of the case too?

W. Eric Collins:

Of course Your Honor.

In fact, I think that equity and not having the chancellor’s foot, would demand that we get attorney’s fees for the nothing down this third party rule as stated by the Court.

Your Honor, I am told things about California law which frankly uphold me.

Until it is a summary procedure I can get a warrant that is not so.

A warrant does not issue to a District Attorney on the 1539 of the California penal code unless that is a pending proceeding with a date set.

It is true that the grand jury can get a warrant, but not the District Attorney.

You mean a subpoena, do you not think?

W. Eric Collins:

The subpoena thank you Your Honor.

The subpoena cannot be a statement.

Now, that is a fact on which I can assure you I am correct.

The grand jury does not sit as due the federals, and I notice to United States in their briefs do not concede this point.

W. Eric Collins:

They bring to your attention the fact, it will have then.

The grand jurys even do not sit but once every once every 60 days in the Middle West or (Inaudible) or wherever they cited.

I cannot remember.

Ours covers 3.8% of the the total cases in our state.

Your Honors, this rule was old conceived from the beginning.

Counsel’s (Inaudible) to salvage something out of the mess I say are ridiculous.

It will put a burden upon us.

We will have to show all of these factors.

We will have to go through this measures contemplated well, I might even say meditated procedure of the law, before we can get our hands, this very hospital search, counsel does not tell you that the patients said you can have them but the doctor thought he would assert a privilege.

Warren E. Burger:

The time has expired Mr. Collins.

W. Eric Collins:

Thank you, for permission to file.

Warren E. Burger:

The case is submitted.

Thank you gentleman.