Senator Robert Byrd's (D-W.VA.) proposal to compel certain members of the Washington press corp to disclose their outside sources of income has created a stir, focusing public attention on the outside activities of Sam Donaldson, Nina Totenberg and other press icons who can command lucrative speaking fees.
Hearings are being scheduled early next year, and the press cannot safely dismiss the Byrd proposal as an obvious violation of the Constitution.
Senator Byrd has labeled his approach a "truth in reporting requirement" Under his proposal, reporters credentialed in the Senate press gallery would be required to disclose annually all outside sources of income.
The point, according to Byrd, is to compel disclosure of conflicts of interest that may arise when journalists receive substantial speaking fees from the same groups that they are covering as reporters: "The goal of the amendment is simply to apply a level of credibility to the press that reflects the importance of their profession."
Senator Grassley earlier had endorsed Byrd's rationale, claiming "the public has a right to know who in the world thinks journalists are worth up to $30,000 for one twenty-minute speech."
While gaining attention on Capitol Hill, Byrd's proposal has been roundly criticized in the press as a terrible idea that would pose a significant threat to press freedom in the United States - a view that has some support in judicial precedent. In 1973, a three-judge federal district court panel struck down a similar Alabama state law. The Alabama ethics statute required members of the press to file a statement of economic interest disclosing all their employers before being granted access to state pressrooms and other space set aside for the press.
In the case of Lewis v. Baxley, that statute was held to violate the First Amendment right of access to state events that were open to the public. The court found the economic disclosure requirement impermissible because it would "tend to have the effect of dragging some members out of the press altogether or to cause members of the press to limit their other associational ties in order to avoid disclosure."
In 1979, the Supreme Court of Massachusetts reached the same conclusion in advising the Massachusetts Senate that proposed legislation to require disclosure of financial information by the press would violate the First Amendment. The Massachusetts court similarly held that compelled disclosure would improperly discourage some reporters from covering certain state activities, or cause others to limit their association with outside interests.
This issue, however, has never been addressed by the United States Supreme Court and there can be no assurance a similar conclusion would be reached by that Court. Indeed, the lessons of the past provide a cautionary tale.
In many ways, the Byrd proposal is being justified by the same arguments that led Congress to impose disclosure obligations upon newspapers at the beginning of this century. The Post Office Appropriation Act of 1912 Congress first required all newspapers,distributed by second class mail to disclose at least twice annually the names of their publishers, editors, owners and major creditors.
In language now echoed by Senator Byrd, the Senate Committee recommending passage of the 1912 legislation voiced the "common belief that many periodicals are secretly owned or controlled, and that in reading such papers, the public is deceived through ignorance of the interests the publication represents. …