PROPOSED CRIMINAL CODE AND THE PRESS (FROM REFORM OF THE FEDERAL CRIMINAL CODE - SYMPOSIUM, 1979 - SEE NCJ-64754)

• NCJ Number: 64758
• Journal: George Washington Law Review Volume: 47 Issue: 3 Dated: (MARCH 1979) Pages: 502-522
• Author(s): M J MULLEN
• Date Published: 1979
• Length: 21 pages
• Corporate Author: George Washington University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

SECTIONS OF THE PROPOSED FEDERAL CRIMINAL CODE REFORM ACT, S. 1437, AFFECTING FREEDOM OF THE PRESS ARE DISCUSSED; CRITICISMS OF THE BILL, PARTICULARLY BY REPORTERS, ARE REFUTED.

Abstract

THE FOUNDATION FOR S. 1437 WITH THE NATIONAL COMMITTEE ON REFORM OF FEDERAL CRIMINAL LAWS, THE BROWN COMMISSION. THE REPORTERS COMMITTEE CRITICIZED THE COMMISSION'S SECTION 1301 OF S. 1437, WHICH WOULD PROHIBIT INTENTIONAL OBSTRUCTION OR IMPAIRMENT OF A GOVERNMENT FUNCTION BY DEFRAUDING THE GOVERNMENT, BECAUSE THE GOVERNMENT HAD USED THE SECTION'S PREDECESSOR TO PROSECUTE DANIEL ELLSBERG FOR DISCLOSING THE PENTAGON PAPERS. IF CONGRESS RETAINS THE PROHIBITION AGAINST OBSTRUCTION OF FRAUD, IT SHOULD CHANGE THE PHRASE 'SOLELY OR THE PURPOSE OF DISSEMINATING INFORMATION TO THE PUBLIC' TO 'PRINCIPALLY FOR THE...' THIS CHANGE WOULD NOT DETER LEGITIMATE PROSECUTIONS OF FRAUD, BUT WOULD CLEARLY PRECLUDE IMPROPER APPLICATION OF THE OFFENSE TO DISCLOSURE OF INFORMATION UNCONNECTED WITH A FRAUDULENT SCHEME. REPORTERS ALSO CRITICIZE SECTION 1311, WHICH WOULD FORBID A PERSON WHO KNOWS THAT ANOTHER PERSON HAS COMMITTED A CRIME FROM HARBORING THE PERSON OR CONCEALING THE PERSONS'S IDENTITY. IT WOULD ALSO PROSCRIBE ALTERATION OF DOCUMENTS TO PREVENT APPREHENSION OF A KNOWN FUGITIVE. HOWEVER, THIS OFFENSE WOULD NOT ALLOW LIABILITY TO BE IMPOSED ON A REPORTER WHO SEEKS TO PROTECT THE CONFIDENTIALITY OF NOTES OR SOURCES, BECAUSE 'CONCEALING' CONNOTES AFFIRMATIVE CONDUCT. THE CRIMINAL CONTEMPT PROVISION, SECTION 1331, WOULD REENACT EXISTING LAW AS RECOMMENDED BY THE BROWN COMMISSION. REGARDING THE REPORTERS COMMITTEE'S CRITICISM THAT INVALID GAG ORDERS WOULD RESULT, THE CONTEMPT OFFENSE, JUST AS EXISTING LAW, WOULD PROHIBIT ONLY DISOBEDIENCE OF OR RESISTANCE TO A COURT ORDER; IT WOULD NOT ADDRESS THE AUTHORITY OF A COURT TO ISSUE GAG ORDERS. OTHER SECTIONS OF S. 1437 AFFECTING THE PRESS INCLUDE SECTION 1333 WHICH INVOLVES CONTEMPT OF COURT; SECTION 1344 WHICH PROHIBITS IMPAIRING THE PHYSICAL INTEGRITY OR AVAILABILITY OF A GOVERNMENT RECORD; AND SECTION 1525 WHICH WOULD PROHIBIT A PUBLIC SERVANT OR FORMER PUBLIC SERVANT FROM DISCLOSING SPECIFIED CONFIDENTIAL INFORMATION. FOOTNOTES ARE INCLUDED. (LWM)