The Courts and A Free Press, Part I

THE OPEN MIND
Sunday, May 4, 1958
NBC TELEVISION
“The Courts and a Free Press”

Moderator: Richard D. Heffner
Guests: Norton Mockridge, Florence Kelley, Edward Bennett Williams

Announcer: The Open Mind, free to examine, to question, to disagree. Our subject today, “The Courts and a Free Press.” Your Host on The Open Mind is Richard D. Heffner, historian, teacher, and author of “A Documentary History of the United States.”

Mr. Heffner: We announced on our last program that today The Open Mind would begin a series on the press in the United States. We shall. We announced, however, at that time that our first program would be on The South and a Fair Press. Our guests were to have been Congressman John Bell Williams of Mississippi and James Weschler, Editor of the New York Post. Unfortunately, Congressman Williams indicated that he couldn’t come up today. We shan’t do The South and a Fair Press today, but we will do our next subject, which is Courts and a Free Press.

Now let me introduce my guests for today’s program. First, Mr. Norton Mockridge, who is the City Editor of the New York World Telegram and Sun.

Second guest is Miss Florence Kelley, who is the Attorney in charge of the Criminal Division of the Legal Aid Society here in New York.

Our third guest is Mr. Edward Bennett Williams, Attorney for the late Senator Joseph McCarthy, for James Hoffa and Frank Costello, and member of the Board of Directors of the American Civil Liberties Union.

I think I’ll begin this program – since we’re not talking about the South today for one reason or another and get right down to the question of the courts and the press, – by reading, if I may, a quotation by Clarence Darrow and then asking you to comment on it, Mr. Mockridge. It’s a long quotation. He said:

“Trial by jury is being rapidly destroyed in America by the manner in which the newspapers handle sensational cases. It is a species of mob law more insidious and dangerous than ordinary mob law. I don’t know what should be done about it. The truth is the courts and the lawyers don’t like to proceed against newspapers. They are too powerful.”
“As the law stands today there is no important tribunal case where the newspapers are not guilty of contempt of court day after day. All lawyers know it, all judges know it and all newspapers know it, but nothing is done about it. Everyone is afraid to act.”

Clarence Darrow back some years ago. That’s putting it rather directly,

Mr. Mockridge: Yes, I would say it is. That’s Clarence Darrowand where is that man today?

Mr. Heffner: He died a natural death.

Mr. Mockridge: Mr. Williams said before that he was not destroyed by the papers. First of all, let me say that Clarence Darrow said that, I would guess, about 25 or 30 years ago, didn’t he? And I would like to ask anyone here whether they had noticed that the jury trial has disappeared, as Mr. Darrow predicted it would. I think today we have even longer, more extensive and even more flamboyant jury trials than we had in Mr. Darrow’s day, although he did his best to keep them going.

But more important than that I think that newspapers have a true duty and an obligation to present the facts and to print them no matter what they are. I think that when a man is arrested, the public has a right to know it. If this, indeed, should prejudice his trial in the future, that is another matter that one has to discuss on another basis, which we will do later.

But I think that if we tried to hide the fact that a man was arrested or that certain charges were being made against him, we would not be doing our duty and the public would not be informed. This, I think, is the worse thing that could possibly happen.

People who buy a paper have every right to know what goes on every single day, and that is what we try to do and that’s what we intend to continue doing. And there is nothing sacrosanct about the Judiciary, which I will be very happy to talk about a little bit further, and if the Judiciary feels that we are wrong about that I’d like to argue along that point, too.

Mr. Heffner: All right. Now to my other guest, Miss Kelley.

Miss Kelley: Well, I would like to question Mr. Mockridge about one thing. Now I don’t think the test of whether the press has been fair or has had a decent role with respect to the jury trial is whether or not the jury trial still exists or not. I think the test is how much has the use by the press of certain information in items which they misuse affected the fairness of the jury trial, not if it still exists. Is it still a fair system or not for the individual who is brought before the court?

Mr. Heffner: Well, how do you judge your own question?

Miss Kelley: I have to think in terms of individual cases because it’s the only way I can think about the subject at all. Now I think of going to trial before a jury with a defendant, and he under the Constitution is supposed to have a fair and impartial trial. Where am I going to find an impartial juror if every juror in the city has read that this defendant has confessed the crime that he’s about to be tried for? Now, actually on trial that confession may be ruled out legally; in other words, it would be improper for the jury to hear that confession in connection with that charge. But if, in fact, every juror, or prospective juror, has already read the confession, how fair is this right of his to have the confession ruled out?

Mr. Heffner: Mr. Williams.

Mr. Williams: Well, I think we are dealing with a very delicate balance of conflicting rights. There’s the right of the curious to be satisfied, for which Mr. Mockridge contends, and there is the right of the accused to an impartial jury, for which Miss Kelley contends.

My own experience has been this. I haven’t found that the press has abused its function. I think that the trouble lies, not with the press, but it lies sometimes within our own profession where we have advocates who hold press conferences in which they evaluate the evidence before trial and put out releases. You see, in the case which you cite, Miss Kelley, where a confession goes to Mr. Mockridge’s paper and he prints it, as he probably should, as a City Editor, if it’s put out by the District Attorney as a piece of news, I don’t think the fault lies with the World Telegram. I think the fault lies with the District Attorney who is trying his case in the World Telegram instead of before a jury, and I think that we can solve this problem by each policing our own houses. I think that the Judiciary can take care of its own problem. The legal profession can take care of its own problem by enforcing the canons of ethics which preclude a lawyer from discussing his case during trial or before trial, and from evaluating his evidence or discussing what he’s going to do in the court room; and if you could apply this to prosecutors, and more importantly, if you could apply this to Congressional committees which constantly infringe into the area of the Judiciary in this particular matter, I think we wouldn’t have the problem.

Mr. Williams: The last two years, I think, have brought only three cases where courts have said the defendants were denied the possibility of a fair trial because of a saturation of bad publicity in the community where the defendant was being tried. I refer to the Delaney case in Boston, the Collector of Internal Revenue; the Dioguardi case here in New York, where Dioguardi got an extension of time because there was an adverse blast of publicity; and the Karper case in my city, Washington, D.C.

Now in each of these instances the fault did not lie with the press. It lay, in the Delaney case, with the Congressional committee, which went into Boston and beat the drums for two months before Delaney went to trial and saturated that town with publicity on the eve of his trial so that the prospective panel of jurors had a predilection of guilt.
Here in New York, in the Dioguardi case, the bad publicity came about as a result of a trial of three of his co-defendants before his case, in which he was named in the press report, as it had a right to do in the events of that trial.

In the Karp case, again, it was a Congressional committee which put out a blast on the defendant on the eve of his trial. Now I think the way to deal with this is to penalize the litigant who is responsible for this saturation of publicity. If it’s the United States Government, through a Congressional committee, then you penalize the Government by giving the defendant either a change of venue or a long adjournment. If it’s the State of New York, as the result of a release by a police officer or the District Attorney, then you penalize the State of New York by giving the defendant a long adjournment until he can got a trial, you understand, in a decent atmosphere. But I haven’t found the press has been unfair or, other than objective and impartial, and I think it would be a terrible thing to bridle the press as they have in England.

Mr. Heffner: You think that in England where the contempt procedure has been used, and I gather has been used fairly frequently, to prevent the press from digging up the kind of news – and I’m talking about digging up the kind of news you’re talking about, rather than just the release of news by District Attorney or a defense attorney, do you think this has been an evil rather than a good?

Mr. Williams: I certainly do. I think that’s shooting the dog to kill the flea.

Mr. Heffner: Which dog has been shot, though?

Mr. Williams: I think that you have imposed a prior restraint on freedom of expression and freedom of distribution of information which is unconstitutional at the English level and at the American level, and I would be wholeheartedly opposed to that.

Miss Kelley: Now I would like to say something about what Mr. Williams has said about releasing information about cases. Actually, in this jurisdiction I’m talking about New York County. Our District Attorney hero, Mr. Hogan, has been very careful not to release information about specific cases that have not as yet been disposed of. As a matter of fact, he’s even been criticized for this position, although I must say I honor him for it.
But the information that I think that I’m talking about comes not from being released by the District Attorney’s office but it’s something that the reporter has gotten by going to the police station and getting something> maybe, from the arresting officer. Now this wasn’t released, it wasn’t handed out, but it was something done on the part of the reporter – I would suppose you would consider him a very able reporter, to take this initiative and go and get the information – but I think this is the damaging part. I agree with Mr. Williams, of course, that there should be some control over the prosecutor issuing releases, and the attorney, but that seems to me easy. The thing that I think is difficult is where it’s not a release.

Mr. Williams: The fault I think, Miss Kelley, lies) in the illustration you’ve chosen, with the arresting officer. It isn’t his function to put out press releases; it isn’t his function to present his evidence to a New York City newspaper; it’s his function to make the arrest and to go into court and to testify under oath the facts which he’s observed, and when he steps off base and releases information detrimental to the defendant’s right to a fair trial, then I think that as an agent of the prosecution that the prosecution must be responsible for his acts; and I think they are vicariously liable for what he’s done and some penalty must be inflicted, that it should be inflicted against the State. In other words, I think the defendant can still get a fair trial by giving him an adjournment until the effect of that publicity has worn off. But I don’t think it’s the fault of the press, I really don’t.
Mr. Heffner: Now, let1 s have MI’. Mockridge comment.

M. MOCKRIDGE:

Well, I think that as learned as this discussion has been, you 1 re getting into a field where the Bar Association and the police could work out something on their own. This is precisely what I
do not want to have happen. I think that the public has the right

to know precisely what has been going on and not to have District Attorney Hogan sit quietly on a case, and admit only! “Yes we have arl”ested this man for embezzlement and you will have to wait
until he gets into court to hear about it.” We want to know at the time what happened. We have every right to lmow.
MR., WILLIAMS:

Do you want to ti’Y him in the World Telegram?

MR. MOCKRIDGE:

I don’t want to try him. What we want to do is to say that MP. Edward Bennett Williams was arrested today for this
particular charge•..

MR• WILLIAMS: Which I hasten to deny.
MR, MOCKRIDGE:
This we would be glad to print, too, so we get two stories out of it.

MISS KELLEY:

Yes, but the acquittal and the denial never seem to me to impress the public as an initial story does.

-10-

MR. MOCKRIDGE:

Well, an acquittal and a denial are not as newsworthy in some cases as the arrest of someone••.
!:IR• WILLIAMS:

But don’t you have an obligation••• MR. MOCKRIDGE:
We definitely have this obligation, and it’s something that

we will never yield.

MR. WILLIAMS:
The fact of the matter, Mr. Mockridge, is that you fellows like bad news…

Well ..•

fR• MOCKRIDG.§.:

!:’!R• WILLIAMS:

You like convictions, and acquittals aren’t terribly exciting or interesting…

No, no, no …

MR• MOCKRIDGE:

MR. WILLIAMS:

I’ve never seen an acquittal get the play in the press that a conviction gets because city editors love convictions and long sentences because they make exciting headlines and great news, but – I think Miss Kelley is dead right – the denial never catches up with the accusation.
MR• MOCKRIDGE:

That’s true. Now, we particularly, at the World Telegram and Sun, as I told Miss Kelley before, devote as much space as
we can in a situation where a man has been charged for something and then cleared. (MORE)

-11-

MR. MOCKRIDGE: (CONT’D}

It happened only just the other day, when this Youth Board worker

r;Jho was charged with sitting in a movie house and giving heroin to some of his little charges. WellJ this was an accusation by the Police Department and we published it as such. When this man was acquitted
of this charge, we ran an even longer story explaining how this thing had happened. Now he is suing the City for false arrest.
MR• WILLIAMS:

I think you have a right to print what you get.!1m not always happy about the people who give it to you, but I think you as a newsman maybe, have an obligation to print what you get. I, like Miss Kelley, honor Mr. Hogan for the policy that he’s enforced here in his office in New York, and I have to part company with you when you say that you think that he should give you more information
about offending cases. On the other hand, I am with you, Mr. Moclcridge, when you speak out against bridling the press in printing news. I read of a terrible situation, one that happened in London
a few weeks ago where there was a very heinous murder. A small child

was garrotted by a sex fiend and killed, and the London papers, despite the fact that the cardinal suspect was at liberty, were fearful to print his picture because they feared some sort of sanction being imposed upon them at the time of trial, and so only the police knew who the suspect was as far as his identifying features were concerned, and because of their reluctance to print this picture and because the citizens of London weren’t alerted to the identity of this man, another crime was committed 72 hours later·.••

-12-

MISS KELLEY:

But he was still only a suspect, wasn’t he?

MR. WILLIAMS:
Now this disturbs me. I don’t think that kind of a bridle should be put on the press.

MR. HEFFNER:

Now, but nowJ wait a minute – Just a minute. vfuat about Miss Kelley’s question here, that he was still a suspect. We know now – I assume we know – on the basis of what you’ve said that he was the guilty party. \fuat Miss Kelley says is that he was a
suspect.

MR. WILLIAMS:

Yes, but the fact is the papers of London had the news item. They had the picture, and they feared to print itJ and this is the difference because there was a prior restraint on their freedom of expression which they feared to abrogate lest they be penalized by the Courts of England, which I think is a deplorable thing. Now, what I’m saying, Mr. Heffner, is that I think it behooves law enforcement agencies to not try their cases in the press, but if the press gets the information then certainly they shouldn’t be fearful to print it.
MR. HEFFNER:

We’ve been talking only about law enforcement agencies and District Attorneys attempting to try their cases in the press. Why don’t we put it on a broader plane and let me ask you whether you1 ve ever had a client who was tried in the press.
MR. WILLIAMS:

Yes.

-13-

MR. HEFFNER:

All right, how do you feel about that?

MR• WILLIAMS:

I felt this way about it, Mr. Heffner. I filed motions

in court and I said in those motions that the community had been so saturated with adverse publicity that I couldn’t get a jury panel which did not have a predilection about this man’s guilt, and so I asked the court to change venue and I asked the court to give me
six months of time as an adjournment so that this super-saturation of bad publicity would have a chance to dilute, and I was accorded this. But, the thrust of this motion, Mr. Heffner, was thisj that an arm of the United States Government; namely, a committee of
the United States Senate, had put out releases about the guilt of

this man before the trial and the Chairman, in fact, had gone on national television and expressed his own conviction as to the man’s guilt, the counsel had likewise expressed his own conviction
about the man’s guilt, and the United States attorney had given out evidence before the indictment in this case, and so I didn’t
have any criticism of the press because I think the press would have been derelict in not reporting what a Chairman of the Senate Committee had to say or what the United States attorney had to say. My criticism was directed at these officers of the court or quasi­ officers of the court for violating the fundamental canons of the ethics of the American Bar Association.
MISS KELLY:

But I want to go back to your suspect in England,

this sex fiend – that the papers were, as you say, afraid to publish. Now, as far as you know that person that they had the picture of might have been put on trial and acquitted. (MORE)

-14-

MISS KELLY: (CONT1 D)

Now, the point that I’m trying to make is if his picture had been published, it would seem to me the persons who were the prospective witnesses, who were going to identify this defendant, might have become very sure of their identification if they’d seen this man 1 s picture plastered all over every paper in England, so
that it seems to me that it goes even further than the effect it may have on a jury; it may even affect a prospective identifying witness.
MR. WILLIAMS:

Of course, the other problem, Miss Kelley, is how do you ever apprehend a fugitive if you can’t put his picture out.••
MR, MOCKRIDGE: Yes, you’ve got to do that.
MR!. HEFFNER:

Mr. Mockridge, I think you were going to ••• MR• MOCKRIDGE:
Well, Miss Kelley, I think, as I said before, I think

we’re getting away a little bit from what we started to say. I don’t think that our publications of news about men who have been arrested or brought up for trial in one way or other is prejudicial to his case. I think that most of our people who serve on juries are
people of very high caliber; they no doubt have read everything that we’ve written before; they no doubt have digested it and discussed
it and they are aware of it, but I think that it’s an insult to the American public and to the spirited kind of citizen that we get on our good juries to say that they would be influenced by this. It’s up to you attorneys to keep them out.

-15-

MISS KELLEY:

Well, you haven’t talked to as many jurors as I have. You would be amazed at the number of people who say: I don’t even know why I was called on this jury, everybody knows this defendant is
guilty, anyway. This isn’t said once, it 1 s saj.d over and over again.

MR• MOCKRIDGE:_

It’s up to you then to change his mind around. What is presented in the court is all that matters, not what is printed in thE:
newspaper.

MR• HEFFNER:

This isn’t quite the theoryy of the jury, as I

understand it, though, Mr. Mockridge, that Miss Kelly’s obligation is to take a juror who says at the very beginning: Well, of course, everyone knows that he’s guilty. It isn’t her obligation to
change his mind. Now if I could just ask this question – You maintain that you don’t think that what the newspapers print prejudge jurors – make jurors who are prejudicial ••••
M}h_ MOCKRIDGE:

I don’t think so, no••••

MH• HEFFNER:

•••let me just ask the question. I gather Miss Kelley fells this is true, that they do. How do you feel about this?

-16-

MR. WILLIAMS:

Well, I’m always appalled when I examine a jury Miss Kelley, because it can be the most celebrated case in the community and sometimes nationally, and you 1 ll ask jurors if they have read
anything about the case – and it will have been blazoned across the headlines for weeks and weeks – and 35% of them may say they’ve read about it, and of those only 1% will admit that they have been influenced in any way, which is a terrible commentary, by the way,
on the present state of journalism in this country, but I think that the fact of the matter is that of course if they have eyes to see, they must have read, and if they have read, they must have been
influenced to some extent.

MR. MOCKRIDGE:

Well, may I ask you one question, Mr. Williams? If there has been a man who has been tried in the press, it has been one Frank Costello, and that man today is walking the streets free.
MR. WILLIAMS:

Well, Mr. Mockridge, you have taken a little unfair advantage of me on that .b:e.(;}a-u.se as you knovV’ and can appreciate, being a really astute city editor, I can’t comment on any of my clients of upon any litigation that’s pending in the courts, because I live by the creed for which I have been making a plea
here on this program, that there should be no discussion of pending litigation, so I’m not prepared to discuss with you Mr. Costello or..••••

-1′”7 ·-

You say there should be no discussion, but you mean merely by the attorneys an ha p osecutors. All right, but don’t you rather pose a situation in which there’s constant war then between the district attorney an0 the government prosecutor who is
obliged now by legislation or a court edict not to say a word, and the

newspaper world trying desperately to get anything it can because you1 ve said that there is no n ral obligation on the part of the newspapers not to dig for this me.terial. There is an obligation. There should be a legal obligation on the part of the lawyers not to talk about it, but that poses a war, doesn’t it?
Ili.R. WILLIAMi?.:

I don’t think it does at all, because if the lawyers lived by their responsibilities, they wouldn’t talk and the press would quickly come to know that they couldn’t get any information. The press doesn’t go out and ask Catholic priests what they hear in
the confessional. Why? Because they know that they won’t learn

what was heard in the confessional. And if the members of our profession will live by the rules of the profession and not discuss pending litigation for the purpose of influencing opinionJ the press will quickly learn that we don’t talk about these matters and they1 ll come to understand it and they won’t ask.
MR • HEFFNER:

Of course Mr. Mockridge won’t accept this.

-18–:

MR. MOCKRIDGE:

Well, I think we would try to find it out in some other

way, because after all the first active dictatorship is the supression of the freedom of information and the minute that the lawyers refuse
to discuss what they’re doing or the district attorney to tell us

what he’s doing, I’m going to find it out somehow one way or another.

MR. WILLIAMS:

I think we ought to qualify just a little bit what we’re discussing. I’m not saying, of course, that Mr. Hogan can’t say the grand jury indicted X today or that Miss Kelly can’t say that I filed motions today in this court. All I’m saying is that we shouldn’t
get into the area of evaluating evidence and of discussing the pros and cons of our position or discussing the merits of our case or the guilt and innocence of the client.
MR.. MOCKRIDGE:

Well, that’s all right. If the lawyer doesn’t want to discuss the guilt or innocence of the man he’s prosecuting, that’s perfectly all right with us, but we don’t want the information
involved in the case suppressed in any way, and I think there’s Been to, much of that both in the courts and in government. Time and again somebody says to us leveling a finger, ”You can’t print that!”
Now that’s getting ridiculous.

MR., WILLIAMS: Do you print it?
MR. MOCKRIDGE: Sure we print it.
MR. WILLIAMS:

Good.

MR. MOCKRIDGE:

The minute that we can possibly get it, but too many times the door is locked. There’s a trial in camera.

-19-

MR. WILLIAMS:
Where has there been a trial j.n camera in the last hundred years?

MR. MOCKRIDGE:

Do you know that mast of the divorce actions involving wealthy people are closed, but the divorce actions involving poor people are wide open, if you want to write that••
MR. WILLIAMS: Is that true in New York?
MR. MOCKRIDGE: That’s true in New York City.
MR. AJILLIAMS:

Are those cases in which there is a serious custody dispute over a small child?
MR. MOCKRIDGE:

1JJell, some are, some aren’t. Look at the John Jacob Astor case recently. There was no custody dispute there.
MR. HEFFNER:

I gather that Mr. Williams would draw a line. Right?
You’d say from that question just asked that in some cases you would have trials.

MRe WILLIAMS:

Well, I was asking merely for information, because I know that there are some instances where judges will take small children into chambers to discuss with the children custody matters.
MR. HEFFNER: Do you approve of this?
MR., vVILLIAMS:

I think the basic dictates of decency require that you show all the safeguards you can around small children.

I

-20-

MR. HEFFNER:

Isn’t this the point then, that there are areas where you would safeguard the privacy, safeguard the children, and you would
say that there are certain things — Mr. Mockridge began by saying the judiciary is not sacrosanct and I wonder if you’re not concluding that the press and the right of the press is not sacrosanct — there
are limits you would draw••

MR. MOCKRIDGE:

I agree. Certainly, I think we have the right to know. But time and time again the newspapers of the City of New York have very quietly withheld information for weeks or months at a time.
MR. H.EFFNER:

In other words, you want to know about the trial.

MR., MOCKRIDGE:

We want to know what’s going on.

MR. WILLIAMS:

You mean you••? There are things that you••?

MR. MOCKRIDGE: We police ourselves.
MR.WILLIAMS:

Are the things that you want to know, Mr. Mockridges those which you feel that you morally could not print?
MR. MOCKRIDGE:

Oh, you mean things that we really would not rather print?

MR. WILLIAMS:

I gather from what you just said that you feel that you have the right to know things••
MR. MOCKRIDGE:

That’s right••

-21-

MR. WILIJIAMS:

Which you can see you do not have the right to print.

MR., MOCKRIDGE:

No, I think we have the right to print it, but we use our own judgment as to whether it would be the value of all concerned,
MISS KELLEY:

Well, then it comes down to a question, doesn’t it, whether or not the press should be the judge of whether it would be a proper thing to print something or whether the judge .
MR. MOCKRIDGE: Miss Kelley, don’t you think•••?
MISS KELLEY:
Of the proceedings might be in a better position to make this decision?

MR. MOCKRIDGE:

He might be, Miss Kelley, but don’t you think the press of the city of New York or of this country is in a better position to judge what the people should know than perhaps a judge who was named to the bench by a Tammany politician?
MR.HEFFNER:

Yes, or no, because our time is up. No “yes or nou

answer. We’re going to have to come back to this subject another time. He’ll be back on The Open Mind two weeks from now with another aspect of “The Press in America”•• Next week Ask Congress will have Representative Ralph Gwynn, Republican of Westchester County. We’ll
see you in two weeks.

ANNCR:

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WRCA has just presented The Open Mind. Your host on the

Open Mind is Richard D. Heffner. Mr.Heffner’s guests today were Mr. Norton Mockridge, Miss Florence Kelley, and Mr. Edward Bennett Williams. If you have any comments or questions on today’s program or if you have any suggestions for future programs, please send them to The Open Mind in care of this station.

TB./SH 5/8/58

j ‘

THE OPEN MIND SUNDAY, MAY 18, 1958
NBC TELEVISION

“THE COURTS AND A FREE, PRESS11 –Part II

THE OPEN MIND SUNDAY, MAY 18, 1958
NBC TELEVISION

MODERATOR: Richard D. Heffner

GUESTS: Norton Mockridge Florence Kelley Eleazar Lipsl:cy

(MUSIC:,•••-

,•-

,}-

ANNCR:

The Open Mind, free to examine, to question, to disagree. Our subject today: “The Courts and a Free Press”– Part II. Your Host on ‘fhe Open Mind is Richard D. Heffner, historian, teacher, and author of “A Documentary History of the United States”.
MR • HEFFNER:

Today 1s program is very definitely a continuation of

our Open Mind program of two weeks ago. I suppose I can say that the Majol” question before us is: what :ts the proper relationship between the right of free press arid free speech and the citiz n• . right to a fair trial? And I think it’s appropriate to recall thB.t
we began the program last time by quoting from Clarence Darrow. Part

of the quote went ·this way:

11 Trial by jury is bei11g rapidly destroyed in A1ner;l(.l?\.. i

by the manner in which the newspapers handle sensational cases. It is a species of mob law more insidious and dangerous than ordinary mob la .11
Now I think today we ought to begin on the other side by

quoting Thomas Jefferson, who said: “I do deplore the putri!J.. st t into which our newspapers have passed, and the malignitlf, vulgarity. and mendacious spirit of those who write them. It is, however,
an evil for which there is no remedy. Our liberty depends upon
freedom of the press1 and that cannot be limited without being lost.”
(more)

-3-.

MH. HEFFNER: (CONTD)

At which point Miss Kelley said: “Well, then it comes down to a question, doesn•t it, whether or not the press should be the judge of whether it would be a proper thing to print something,
or whether the judge of the proceedings might be in a better poaition

to make this decision.”

And in the very very last seconds of the show, when somebody was signalling me to stop it all1 you Mr. Mockridge said: “He might l;e, Miss Kelley, but don’t you think the press of the city of New York or of this country is in a better position to JUdge what the people should know than perhaps a judge who is named to the bench by a Tammany politician?11
Miss Kelley, I throw that to you now. The last time you had three seconds in which to answer and we sort of called it off.
MISS KEIJLEY

As a matter of fact, you asked me and then said: 11.Answer the question “yes or no.”
Now I judge that Itm not being limited today.

MR• HEFFNER:
(laughing)We have 30 min tes, MISS KELLEY:

Well, I’m not going to take 30 minutes. But I would say to Mr. Mockridge that whether or not you feel t.hat the system by which a judge is chosen is a good one, or whether you like the particular judge that is chosen, is not the de,termini:ng fact8r of the problem as we have now, I think gotten down to it. It seems to be the conflict between two rights, one of the right of f ee press and the other of the individual to a fair trial. And I thinl< when
you bring in the possibility of not lil

absolutely irrelevant.

-LJ–

MR. MOCKHIDGE:

Well, but don’t you think, Miss Kelley, althoUJh

whether ur not you like a jud6e is, I grant, m0re or less irrelevant, that whether r not that jude is likely to ive the facts in a
case, ‘_,r to give a fair, impartial viewpoint–that, I think, is the crux (yf it. I think that in the city of New Y·.Ji’l: here we have
many jud;es on the bench who are suspect, who are not likely to

give the press the kind of material that we want, who are not likely necessarily to 6ive a man a fair trial.
MR. HEli’FNER:

May I ask this question: If we had a system of selecting JUdges that would please you, and therefore
put un the bench jud es who w uld please you in respect to the r

di,6nity and their fairness, etc.–would you then revert back to the point that Miss Kelley made that it should pe the j\.ldges, it. should be the legal officials who decide what should
not in these cases be permitted to so to the pPess?

MR. MOCKRIDGE: Well,no) Mr. Heffner; I don’t
that. First, that•.s a hypothetical situation that we

have. I don’t think you could ever possibly have a set of

all over the country that would be acceptable to the press or to anybody else. But, even if you did, I still saJr that a jud6e might be influenced by his own thinking o:r: his. own
by the man who put him on the berJch; or by the litigants

and there are judges who are influenced by those l_itigants–I that that judge has no right to decide whether oJ.’r;ot his trial going to be held secretly.

MISS KELLEY:

This test of a judc;e..,..You’re tryin0 to say that a judfSe is c;oud if he (.Sives you the information you want, and that1 s he’s no .suod if he doesn’t. I don’t think that’s a proper test of a
good or bad judge.

MR. MOCKRIDGE:

No, Miss Kelley, I don’t want the udge to give us
the information; I want us to have the ric5ht to be there to hear it, that•s all.

MR. LIPSKY:

Isn’t the real question whether you have the right

to print the information while the trial is pending? You·always have a ribht to the inforn1ation. The question is whether you have the right to influence a trial while it 1s pending in such a way as may prejudice the right of the man who 1s on trial.
MR. MOCKRIDGE:

How do we influence the trial while it’s pending? The jurors are not supposed to read the papers.
MR. LIPSKY:
. <“(

They’•re notj but before it gets into court ther headlines, and the climate of opinion can be established.
MR. MOCKRIDGE:

Oh, well, that’s true. We argued that last week and Mr. Williams conceded, for instance, that if such a situation occurred; you could ask for a change of venue, or a postponement for a certain time until that climate changes.

,..
-0-

MR. LIPSKY:

Can you give us any reason why the newspapers must

. have this right to prejudice a trial one way or the other, before a man gets the verdict of the Jury? What is involved here except the propertied interest of the newspapers?
MR. MOCKRIDGE:
Mr. Lipsky, I deny that we prejudice the trial. When you insinuate that–

MR. LIPSKY:

(inter•rupting)Well, you must influence the t:t·ial in some way if you give it inflammatory publicity.
MR. MOCKRIDGE:

I don’t think so. I don•t think that you can recall one single case that you ever had when you were an assistant district attorney that was prejudiced by any of our stories.
MR. LIPSKY:

I’m afraid I was guil’cy once of making a statement in court about the guilt of a man, and had. to eat my wurds the next ‘cime it came up for a hearing. It was a hit-and-run case,
and I was convinced the man was gu:tlty. I made a st tein hf’

court and denounced him and asked for high bail. Two weeks later I was ve1embarrassed by the fact that we saw he had no connection with the crime at all. And I withdrew the statement on the record. The first statement got a column, a full column in the newspaper, about the ..fiend who ran away fl”‘om a hit_.and-run case. The riext time, when I withdrew the statement, there wasn’t a stick of type
in any newspaper.

-7-

MR. MOCKRIDGE:

Well, don’t you think we were generous in not calling attention to your mistake? (general laughter) The man GOt a fair trial, though, didn1 t he? And he was not prosecuted.
r.m. LIPSKY:

He was acquitted.

MR. MOCKRIDGE:

WellJ there you are.

MR. HEFFNER:

\’fell, let me discuss something here. You said: “Well, the man got a fair trial, didn•t he? 11
MR. MOCKRIDGE:

Yes.

MR. HEFFNER:

All right. Now, are you satisfied suff’ieient answer to Mr. Lipsky when
character had been defamed, in print, received an apoibgyJ< newspapers didn’t bother to· print it. Are you the acquittal in court? MR. MOCKRIDGE: No, no: I’m sure that can’t be the case, MR. LIPSKY: (interrupting) Well, I have the file, in my showing that to be the fact. I was the guilty party. MR. MOCKHIDGE: Yes, you have the file that you made you dontt have the file that no paper ever carried this, It is a cardinal rule at the World Telegram and Sun that acquitted) or if there is a change in thecase, we will carry n -u- MR. LIPSKY: Well1 just take my word that that never happened, MR. MOCKRIDGE: Now take this case in Jersey the other day. A little boy was accused of killing his mother with a boy scout knife: a nicer littly type of boy you couldn’t find. MISS KELLEY: Has his case been disposed of yet? MR. MOCKRIDGE: Yes. We carried the btory, naturallyj the public has a right to know about little boys running around with boy scout knives and killing their mothers. This kid confessed to this, and he confessed twice. MR. LIPSKY:: And still he might have been innocent after a co’nfession. MR. MOCis:RIDGE: He confessed twice. We carried that. Then it turned out that relatives were able to account for eve;hour that that boy spent around the time of the murder. And we carried a longer story about that reversal than you ever saw. the boy finally was dismissed was carried fully by the World Telegram and Sun. .1” MR HEFFNER: What about the question Mr. Lipsky asked before…. why is it so important? -9- MR. MOCKRIDGE: I do agree with Mr. Thomas Jefferson– MR. LIPSKY: (interrupting)The second part of what he had to say. MR. MOCKRIDGE: He says that some of our stories 6et a little out of line. There’s no doubt about it. That’s only htm1an nature, as some of these judges get out of line. But I say that only publicity can awaken the public to the prevalence and the importance and the constancy of crime. If you suppress it, nobody knows what’s going on. I think it was Rebecca West who said one time that “the face of our living nation must be laid before the public-.-tp.e rea1.c facts and face, or else we live in a world of fantasy.u Now you start to deny the public the right to know and you have the first· step of a totalitarian state. MISS KELLEY: But it seems to me that two rights here can exist together; that the true facts can be, and should be, made public to the whole couht;ry. been committed. But I don•t get this terrific importance of the press setting into it before there has been a disposition of the case. MR. LIPSKY: Well, let me put this to you: in England, wherE! they seem to have a rule which suppresses this sort of thing, they a far more democratic system of t;;overnment than we have here, bec use, among other things the c0urts enjoy higher prestige, ciy:l.l liberties are more intact, just because of the lack of pressure f om -10- tllR. HEFFNER: Yes, I was very amazed last time when I brought up that point and Mr. Williams seemed to think that this was a very terrible thing even in England. But I would come back to the point that Miss Kelley just made, that I don•t think this is a conflict between on the one hand the press saying: “We have a ri;;ht to print the news concerning crimes committed and criminals convicted in this country:– it is very important and certainly part of the news. And what Miss Kellq}y says: “Why is it so important to print this information before the criminals come to trial, before the decisions are made as to whether they are or are not cr1minals?11 This really has nothing to do with public information, does it? MR. MOCKRIDGE: The public has, under the Constitution, a complete right to know. The newspapers have a duty and an obliga.t on· to provide that knowledge, to gather it, to know evel”ything going on. MR. LIPSKY: Why should they have this right? MR. MOCKRIOOE; Because it’s guaranteed. MR. LIPSKY: If there’s a law Which prevents such publication, they dontt have the legal right, and t4ere seems to me no moral right ‘,l.., ‘ whatsoever .to bring additional pressure on the man no•s s andin/3′>>.;

trail, where his liberty is involved.

MR. MOCKRIDGE:
Yes, but I say to you that you cannot show me one single case where we have done this —

-11…

MR. LIPSKY:

(interrupting) Well, I’ll give you an example, One

of our mutual friends, an editor, who we met socially not too long ago, Miss Kelley, had been complaining about being exposed to public
·’
View due to testimony he was giving a Congressional committee- at

the very same time that his newspaper was publishing the arrest of

·an actress in Los Angeles on a charge of prostitution. Not convicted; no evidence stated; but a picture was set up there in sv.ch a way that would forever bar her from decent society. Now she
was completely disposed of in the trial by newspaper by having her picture printed. Now I see no reason in the world why in New
York a newspaper has to publish sue:h a story about a person who

might very well have been innocent of the charge, Now there’s another example I could give you1 and name names later on—-

MR. MOCKRIDGE: .

(interrupting) Mr. Lipsky, that’s not someone who’s on trial. You’re talking about-
MR. LIPSKY:

But this was an arrest!

MR •. MOCKRIDGE:

Yes.

MR. LIPSKY:

And no proof of guilt!

MR. HEFFNER:

This seems to be the whole point, Mr. Moqkridge, I
think–that as a lay person, and not involved as a newspaperman

or as a lawyer, the question comes up in my mind: Why, before the.··
trial has been finished? Certainly it1s important to make known statistics of carnality, et¢, But \’lhy before the trial?
(MORE)

-12-

MR. HEFFNER: (CONT’D)

Why should there be this picture in any way? And it brin;z;s to mind, the question Mr. Lipsky raised at the beginning. He, I think, insinuated or said: 11 This has to do less with constiutional rights or moral rights than with the profits that a newspaper might make –through pl’inting of pictures, through sensational headlines, through stories.11 But if you talk about right, wouldn’t you say that the right to a fair trial possibly, in this instance–where no one wants to limit publication of news concerning conviction–takes precedence over the right of a newspaper to let everyone know what is going on before accused
criminals–accused people –come to tr1al?
MR. MOCKRIDGE:

No, I think that as events happen they should be publicized, so that people can read them. It makes a lot of difference, for instance in your hiring a firm, ot· your employii:\g an attorney, if you know about that man. If, for·instance, Mr. Lipsky here were about to be engaged by you as an attorney, and we
had not printed that he had been arrested for some heinoucrime,

you would go ahead, perhaps and en0age him.

particular position, which might pl”ejudice your case in the long run, I think you would look for another attorney,
MR. LIPSKY:
(laughing)I think you’re making me very guilty.
MR. MOCKRIDGE:

No, I don’t think I am.

MISS KELLEY:

This hypothetical question—-

-13-

MR. MOCKRIDGE:

(interrupting) All right.

MISS KELLEY:

(continuing) –you say\that your paper would be in possession of information that Mr. Lipsky at one time had been arrested–
MR. MOCKRIDGE:

No, no; I think you misunderstand me.

MR, HEFFNER:
(laughing) You used rllr. Williams last time, so you’re fair game.

MISS KELLEY:

Itts the fact that he or anybody else had been arrested

for a crime•••this is the very thing we•re trying to get at: that
”,’,{‘·
”””
he’d been arrested for it but never been convicted oit. It
doesn•t seem to me that this is fair kind of information to be given to anybody.

r R. MOCKRIDGE:

that you need to know about a person or about a firlnor about a

corporation—

MR. LIPSKY:

(interrupting) Can’t you limit yourself to the noting the fact that an arrest had taken place period? The practice
New York county, as far as the Distr ct Attorney’s Office :i.s

concerned–and everyone praises this practice–is noto isaue comment. Now why cant t we go one step beyond that and .sav that
the paper shall not publish comment beyond certain limited areas.of

-t ….. .Pr-‘Y1Vl”‘!:li-.ir.n in which the public conceivably is interested: that an

MR. LIPSKY: (CONT1D)

Then all of the things that youIre taHting about can be taken care of in the event that there’s a disposition of the case,
MR. MOCKRIDGE:

Mn, Lipsky, what you’re saying has a mildqfascist ring

about it.

MR. LIPSKY: (interrupting) On the contrary-­
MR. r10CKRIDGE:

(continuing) This kind of thing could set us into

a great deal of trouble. I am completely opposed to District

Attorney Frank Hogan or any other district attorney announcing

11We have arrested Mr. Jones on this charge, and that it is being presented to the Grand Jury.” From then on you know nothing about this case. What could happen to that man?
. MR. LIPSKY:

Well, very simply, many examples arise where after

there is a wrongful conviction, the newspapers have then done their job and done very good ones. Your own newspaper· in
MR. MOCKRIDGE: (interrupting) Yes, surely.
MR. LIPSKY:

(continuing) –Hafner case, showed that a man had been

wrongfully convicted.

Surely,

That’s right.

MR. MOCKRIDGE: MISS KELLEY:

-15-

MR. LIPSKY:

But what about the case where the ncvrspaper helps bring about a wrongful conviction?
MR. MONKRIDGE:

Well, I don1 t think there ever has been such a case.

MISS KELLEY:

You keep saying that you don’t, that you aren’t familiar with any case in which a newspaper, by printing a stoPy, has help to convict a defendant.
MR. MOCKRIDGE:

No.

MISS KELLEY:

But I wish that you had talked with many petit jurors, as I have, who will tell you that they were influenced by something they read in the paper.

MR. MONKRIDGE:

Oh, I think, seriously, Miss Kelley that almost every juror who comes into court might have read something about some man stealing a car in these petty cases,and might have thought:
11Well, he probably stole it becauoe the ”police arrested /hin1. 11
I dontt think that that influences a juror when the case is present d in court—

MISS KELLEY:

(interrupting) No, if it•s·a jury trial it•s not such a petty case.

-10-

MR. MOCKRIDGE

Well, Itll say grand larceny then, if you wish. But

I mean….I1m perfectly certain that, as I said last week; that the American public is spirited enouh to understand that a story might have influenced them momentarily, but when they sit there and see the case presented and unfolded day by day, how can they not make
up their minds in the correct way?

MR. HEFFl’lER:

Well, I guess the trouble here is that Miss Kelley

is making the point that she, in her dealinGs, has met innumerable jurors who have said they have been influenced–that I
trouble. I dontt think it•s a matter so much of possiblY even a

principle in this instance, as of the experience; and I think after you can concede the facts, or the experience, then maybe you have to make the decision that despite this, it
difference–that as Jefferson said–you cannot limit the

the press in any way.

‘MR. LIPSKY:

Well, I think thatts obviously wrons, because the freedom of the press is constantly limited in many ways.
MR. IviOCKRIDGE:

How?

MR. LIPSKY:

Well, by the libel laws. I had an e; perience

up to one of ouv big important newspapers on a syndicated basls telling them a story that they were about to print was
the story was printed nevertheless, afterwards, with a great deal of humiliation on the part of the editor. Not your newspaper.

-1′(-

IVIR, 10CKRIDGE:

No. Thatrs precisely it. There ar•e prescribed rules. If we break one we have to pay a penalty.
MISS KELLEY:

But I don’t know of any limitation on the constitutional right to a fair trial.
MR. MOCKRIDGE:

No, nor do I know any on the constitutional ri6ht to the freedom of the press.
MR. lillFFNER:

Now wait a minute••••There has been–we’ve just talked about–a limitation upon that ri:.;;ht—
MR. MOCKRIDGE:

(interrupting) If wetre inaccurate.

MR •. HEFFNER:

(continuing) Yes. But I think Miss Kelley :rai13es a very interesting point: that there is no limitation on the constitutional right to a fair trial.
MR. MOOKRIDGE:

How can a right to a fair trial be inaccur,ate? Youtre comparing two different things.
MR. HEFFNER:

Well, that ‘s just the trouble, that we are dealing
here with judgments, because the whole question has resolved it$ £rs

as we noted at the beginning–into what the relationship is be;i; K’ the right of free speech and a free press to the right to a
trial,

-18-

MR. MOCKRIDGE:

Well, may I aay this: the minute that we stop looking at our courts and publishing every single scrap of information
that we can get about them, that minute we set up a plan which could lead to unbelievable corruption. Even with out printing
every scrap or infonmation that we know, we have had judges like

Martin Manton, who was one of the most crooked federal judges that ever sat on the bench, exposed by the World Tele ram and Sunj and he died in jail, We have had cases of where a man like Thomas A. Aurelio wanted to be a judge all his life, and the day he 3ot the nomination for it he got on the phone and he called Frank Costello and he said: 11Thank you, Frank, you have my undying loyalty. 11
How can–

MR. HEFFNER:

(interrupting) Yes, but you see youtre going back againJ Mr. Mockridge, to the thing that Miss Kelley–t!hink we sort of
agreed that we’d dispose of it at the beginning••by sa;11ng that we can single out individuals, and I think you can single out many individuals in the other direction–we’re really talking about a
structure, a system, and I think this is a little more imPQl:’t nt.
:·_:_·.;..)’>···<‘
I wonder if you feel that you can prove to a certain extent–I suppose none of us can do that; this isn’t a courtroom in the first place—the value of this absolute freedom in terrns of a fair trial. In other words, whether the freedom what you’re requiring has
an instrwaent in guaranteeing the freedom that our twlegal are concerned with.

.· .”• ‘·:..·

-19-

MR. MOCKRIDGE:

Let me say this: that even if you show me one or two cases whereJ under our freedom to publish, that a man was denied a fair trial–and nobody has shown me that yet–even if that were soJ I1d be erfectly willing to have one or two to be denied a fair trial for the greater good of everyone else.
MR. LIPSKY:

I’d like to make this point: it seems that what you•re talking about is the right to criticize public officials, to p ote t the people as individuals) against .the pressure of crookedness.
MR. MOCKRIDGE:

{interrupting) Sure. That’s part of it.

MR. LIPSKY:

WellJ can’t we make a distinction there and .say the freedom of the press shall flourish where there is susp derelici’cion of duty on the part of public officials–because when they get elected to public office they assume that burden. But that the ordinary individual who is unwillingly
a cou1.,t .and put to trial shall be protected until

disposition. Then if you decide that something went

either he was acquitted through a fix, or he was convicted wrong-· fully as in the Campbell case, and other cases–then you can just go to town after the event. Nobody is trying to limit
!1R. MOCKRIDGE:

But Mr. Lipsky, how can we go to town after the after the man is convicted or f:r·eed, when we don’t know what
·was that brought him to trial?

-2·J-

MR. LIPSKY:

You can go to court; you can go to court and get all the information, and then go to•.town. You’ve done it! You’ve
done it!

MR. r·10CKRIDGE:

Look, what.r s presented in court is not always what happens. Many things have been put before a grand jury, which is
in secret, and they never appear in court, because there’s a fix

between the prosecutor and the judge thing we want to know about.
MR. LIPSKY:

This is the kind of

Well, I wouldn’t eliminate your right to expose t[lat sort of thing–

MR. MOCKRIDGE:

(interrupting) ‘l’hatts what we want to get. Thatls what wetre talking about.

MR. LIPSKY:

(cc.,ntinuing) But ho\’1 about the ordinary citizen, the

cases I’ve been bringing up?
MR. HEFFNER:t

Well, let me ask this, since Mr. Mockridge is an excellent example of a responsible newspaperrnanJ and feels as strongly as he does–and you people feel as strongly as you do–
it would seem to me that the question is: h into the future? What is liable to happen if we•re not go:lrig'”to

assume that there’s going to be a limitation upon the right of the press to report as it does? Do you think there’s any possibility that we may find ourselves with a jury system that has been outmoded, and maybe we’re approaching this question of a fair tr al

-21-

MR. MOCKRIDGE:

I think that1 s a much better way to approach it.

MR. HEFFNER:

If we insist upnn the right to maintain a free press and free speech–and nobody denies that this is important ,…._
Mr. Mockridge feels that prior knowledge and prior publication before disposition is important–do you think possibly we’re going to get to the point where we el ,inatthe jury and depend upon
the judges, who Mr. Mockridge sort of–

MR. LIPSKY:

(interrupting) I would say that’s a subject for an entirely different occasion–whether or not we should eliminate the jury system. I think we have it. What Mr. Mockridge says demonstrates what’s wrons with his argument. Because what·he’s saying is that the jury should be influenced
ordel”‘ to do–

MR. MOCKRIDGE:

(interrupting) No, no. Where did you get that idea?

MR. LIPSKY:

Well, now look: if the jury is not supposed

the newspaper, and is not supposed to know what’s GGing on, then the newspapel”‘–supposedly–has no effect on the trial whatsoever. MR. MOCKRIDGE:
(interrupting)Supposedly•.•..H

MR. LIPSKY:

(continuing) Then hOW does publication influence the disposition of the case?

-22-

Mft. MOCKRIDGE: I don’t think it does.
MR. HEFFNER:

He doesntt want it to. He doesn’t maintain that it should. He’s talking about the public knowing–
MR. LIPSKY:
(interrupting) All of us know that it does. In impiO’vtant cases.

MR. MOCKRIDGE: If you would name me one–
MR. LIPSKY: (interrupting) The Shepard case.
MR. MOCKRIDGE:

The Shepard case! If the newspapers hadn’t brought
out the fact that Sam Shepard was involved in th.is murdel i{);;::,.’ Cleveland, and that the officials there were doing nothing ‘b9l.it

it, he never would have come to tri l.

MR·. LIPSKY:
And perhaps he wouldn’t have been convicted i’f.. .i.. ,t,. .c:J h:a; k-.,,,’:e here, but actually we haven’t been talking about the jury sy.st in versus a free press. We’ve been talking about a fair trial versus

a free press, or its relationship. And I wonder if we shouldn’t
–we have exactly 30 seconds left– MR. LIPSKY:

(interrupting) In my opinion, judges are just as susceptible to this type of moral pressure as jurors, if not more
so.

MISS KELLEY: Probably they are.
NR. NOCKRIDGE:

But I still would like to see one case of where someone didn’t really get a fair tr>ial because of our publications.

-26-

1R. HEFFNER:

You mean in the days to come, tomorrow and the next dayJ weIre going to have to get briefs frum russ Kelley and Nr.
Lipsky—-

MR. MOCKRIDGE:

(interrupting) I’ll read them with great interest.

MR. LIPSKY:

Therets been a book published by Professor Borchard which has some bearing on this, in which he has about 32 cases that he happened to fish up, and everybody’s experience .is along these
lines.

MR. HEFFNER:

And that ends our program. Thanks so much for joining me today. We’ll be back with The Open Mind in two weeks, when our subject will be “All Of The News”. We’ll see yot1 then.
will be I.F. Stone, and we’ll be talking about all the news that and is not, printed. See you then in two weeks.
·ANNCR:

WRCA has just presented The Open Mind. Your host on
The Opeh Mind is Richard D. Heffner. ‘M . Heffneris

were Mr. Ncrton Mockrid;;e.Miss Florence Kelley, and Mr. Eleazar Lipsky. If you have any comments or questions on today’s pro0ran or if you have any suggestions for future programs, please send them to The Open Mind in care of this station.

END

THE OPEN MIND SUNDAY, APRIL 20_, 1958
NBC TELEVISION

MODERATOR: Richard D. Heffner

GUESTS: Mrs. Anna Arnold Hedgeman
Mr. Stan Opotowsky
Dr. Dan Dodson

{ ) ( )

THE OPEN MIND

APRIL 20, 1958 SUNDAY

(MU§.IC: l

ANNCR:

The Open Mind, free to examine, to questionto disagree. Our subject

t 0day_,

r:Har1em, r1\.T ew·

·1v.0!..,c] { v”‘. t yn. Your Host on the Open Mind is

Richard D. Heffner, historian, teacher and author of a documentary

history of the Unj.ted Sta·i;es.

MR. HEFFNER:

I was going to begin this program today with a refersmce to the fact that our next three programs are going to be concerned with the press. We 1 11 be talking about two weeks from today the subject of 11 The South and a Fair Press”, and two wee!-cs after that, 110ur Courts and a Free
Pressu, two weeks after that a program that we entitle 11 Al1 the News 11
•

As a matter of fact, today’s program is very closely related to the matter of a free and a fair and a responsible press, one that gives all the news and all the views, too, I think it’s probably true that any subject that’s discussed on or with 11The Open Mind11 is related
to just about every other subject.

Our program today I th:i.nk is a most important one, because it was just last month that a series of articles appeared in the New York
entitled “Harlem”. This series written by Stan Opotowsky has caused a considerable amount of fuss, and feathers and controversy. It has stimulated much interest in the mj_nds of a good many people interested in what Harlem is and what Har•lem really means in this
city and in this country, and I think we should now turn to my guests

and begin our discussion of this series, and more importantly of

Harlem itself.
(MORE)

-2-

MR. HEFFNER (CONT’D)

My guests today are first, Mrs. Anna Arnold Hedgeman, who is assistant to tl::e Mayor of New Yor!c City, Mayor tvagner. My second guest is Stan Opotowsky “t’Jho wrote the series on Harlem, reporter for the New York Post. And my third guest is Dr. Dan Dodson who is the director of the Human RelationCenter here at New York University.

Well, let me just read this first paragraph that Mr. Opotowsky wrote: “Harlem is a place that is not really a place at all. Harlem is a home that nobody loves. Harlem is a cultural center that cultural leaders flee. Harlem is a haven that refugees grow to despise.
Harlem is a ghetto and the walls are crumblj_ng down.n Considering

the beginning, the 12 part series and the reaction to it, I thinlc I’d ask you, Mrs. Hedgeman, because you’ve been quite critical of the series, which has) after all, appeared in the newspaper that has a long reputation for being liberal and for being a friend of
the Negro in New York and in the country, what you think the series means and what you think the concern about the series means in terms of a real understanding of Harlem?
MRS. HEDGEMAN:

Well, could I say first of all that we•ve all been very appreciative of the stand the Post has taken on many subjects which concern the Negro. Therefore, when we found that there was to be a series on Harlem, we looked toward them with hope. t;Je thought of people
like Murray Kempton and Max Lerner, of Oliver Pilot, Ted Poston,

and any number of others, and Mrs. Schiff herself, who could, after all, be playing bridge rather than support5.ng a newspaper, so we wer•e very much interested and hopeful.
(MORE)

-3-

!IRS • HEDGEMAN: ( CONT ‘D)

When the first of the series arrived saying that we didn’t love Harlem, and some of us love Harlem very, very much, we took that in stride,
and then as this series developed we remembered that the statement

was made that cultural leaders flee Harlem. Well, I could name 65 or 70 if we had time on the air today, and maybe get j_nto the hundl’•eds rather swiftly s 11:ho have not flown Harlem and who have been
.. working rather ser:tously with Harlem through the years. Pinally, lots of people began calling me: “What do we do about thi.s?” “Isn’t
this outrageous? 11 r:Yrlould you have believed it of the Post?’; “Where

do we start?” And after some discussion I began thinking about that one sentence, ”Harlem’s past is ghastly, her present, inglorious, her future, hopeful.11 And I thinlc these were the three ideas which caught on in my mind. Harlem’s past ghastly? This is fantastic.

I am part of Harlem’s past and have been for thirty-odd years, and other people were saying the same thing. Out of a ghastly past and an inglorious present you just don’t get a hopeful future. But more than that, Harlem is a symbol. tlhen one of my very close co-workers waHced in and sald, “You know, if I hadn’t known you, I would have believed this series as perhaps what Harlem is really like. 11 So
this again becomes a symbol not only of Harlembut a symbol of all

Negro communities, and therefore we were deeply concerned that the other side of the picture be brought in, :Ln order that the world may lmow that perhaps, at this moment in history, if American democracy is achieved, it will be because of the Harlems of this nation.

-L –

MR. HEFFNER:

Well, I think that maybe I would ask you, Mr. Opotowsky, in terms

of what has happened since he finished his series, whether you think you have seen something more about Harlem? I don’t mean the other side or anything like that, but in terms of the reaction to the series, whether this makes HEU”lem more symbolic or more symptomatic
of something to you?

MR. OPOTOWSKY:

I don’t think there has been any change. I have attended a number of meetings such as this one, and I think the chief criticism I have heard, when you get down to hard facts contained in the newspaper,
is that ‘So these things may be true. It doesn’t help to expose

them; you only hurt them.” There has been much said about the

fact that if you write these things in the New York Post, which is the Negro’s friend, just think, these w·ill be picked up by southern newspapers.

It is not our view that we are to hide anything from southern newspapers or anyone else; It is the view of the Post, and should be the view or every newspaper, to print the truth. If :Lt hurts
your friends you are sorry, just as j_f you offend a personal friend

at a party you are sorry, but if tt is basically true, if there are evils that are exposed by these things I feel you have accomplished something, because you can at least point them out and if someone wants to do something about them, there they are. If someone wants to whitewash them or ignore them or pretend they are not there or which is more in this case to go around looking for exceptions to the l”Ule, there is nothing much you can do about it but at least
you have performed the service of presenting the situation as it

exists. (MORE)

-5-

MR. OPOTOWSKY: (CONT’D)

f1uch has been made about Harlem 1 s past, actually this was not intended to be a history of Harlem in that the historical facts were merely brought in when they seemed pertinent. However, the fact remains that in every technical sense, Harlem generally is a slum area, a bligt,tad area. At ar1y city meeting about schools there will be a delegz.- ;1 ·J:n fr0m Hal”lem pr·otesting the poor schools. At any housing confe.cencc there will be delegations from Harlem protesting poor housing conditions in Harlem. These things have been going on. We all know them – and so all of a sudden when they are wrapped up
in one newspaper series, you just cannot deny them.

MR. HEFFNER:

Let me, before w·e exchange a little more freely ask Dr. Dodson how he sees this, and not just sees the series, but sees the meaning
for Harlem.

DR. DODSON:

Of course Harlem is a symbol in so many ways of the Negro America. Harlem is the psychological capitol of what is the 49th state of the Union I suppose. Sociologically and politically, it seems to me it is the symbol of all the unfinished business America has
and the progress that has been made in the struggle to do something about our unfinished business. f!ly criticism of the series would
be that because so often we seem to rely on stereotypes that much of it seemed to be written out of the head rather than out of the facts. Ican take the first article and go through it. Ijust
did this morning to indicate some of the kinds of things, such as, the man riding the mule in Harlem. I never saw· a man riding a mule in Harlem. I’ve been up there an awful lot and it’s possible of
course, you can ride a mule on Fifth Avenue.
(IV!ORE)

-6-

DR. DODSON: (CONT’D)

But this I think isn’t the place where we want to discuss that l ind of thing, but rather we should cover the bigger significance. Out of this struggle have come some of the keenest interpreters of what our problems in a democPatic society aPe. And some of the most, well – I think I can do it better’ by Pelating a kind of feeling I
have which has come out of my exper:lence. I came here from Texas in

1936. I came from a background where they said Negroes didn’t learn after the 6th year, that something closed in their heads or something, and I was signed to work with Dr. James Weldon Johnson in a class called Racial Contributions to American Culture and was catapulted into what I think is the greatest spurt of creativeness in American society since the flowering of New England culture. Countee Cullen, Rosamund Johnson, Dr. James Weldon Johnson, Jessee
Ph:tlips, Langston Hughes, Alene Wack, Ethel Waters, Richard Harrison in drama, Barte in sculpture and on down the line. Here was this great spurt of creativeness at a point at which a minority group
in America had an opportunity and had a chance to really become self-conscious and to begin giving interpretation to the minority group.

I think this is the k:Lnd of thing that I would raise. Of course they are there in the series in a way but they are not put into perspective, it seems to me. That would be the kind of thing I would say.

-7-

MR. HEFFNER:

Well let me ask this. I think this point is well made. Let me ask you, Mr. Opotow·sky… how you feel about this criticism that there were very positive things. Dr. Dodson talks about a spirj_t of creativity in this very area that you have written about and he talked about that rather than the blight.
DR. DODSON:

I wouldn’t overlook the blight. I don’t mean to be misunderstood.

MR. OPOTOWSKY:

Well, Dr. Dodson, then proceeds to run off a list of names and

by the very names, you know these are exceptions. The series was
not meant to be a series on exceptions. It was meant to be a series on the whole.

DR. DODSON:

But you picked the exceptions. The man riding a mule in Harlem and so on is much more of an exception than the fact that there has been a great creative element in the Harlem community.
MR. OPOTOlrlSKY:

No, no, no, for example, if you take the mule as an exception, this pretty much plays into my hands because it just so happens it is not a very important thing. It was just thrown in for color. It just so happens that I w·orked in Harlem for about three and one-half
months on this series and there is some routine in this man’s life

where he rides that mule every day past the Sugar Ray Robinson Restaurant and so if you want to say that that is very significant, very well, it is, he does. He rides it every day. Where he is going, where he comes from, I have no idea. It’s not really important.

-8-

MR. HEFFNER:

That’s really the problem in the question of the mule or the question of naming some names or naming other names. But let me ask this question now. When “t-‘Je began talking about doing this series –
about doing a program on th:Ls series, :L t was a matter of tal-ring

something the.t had been very much in the news in an important newspaper and doing a program on this subject matter, which we have done very frequently. And I don’t think I ever dreamed that there had been as much concern about the series as there has been. It never occurred to me that there had been as much fierce feeling.
I wonder if it shouldn’t be a matter of our concern.

Why this reaction? Do you thinl-c Mrs. Hedgeman that the Negro community feels that this is a pattern. That its cultural progress has been ignored. That we have constantly put our emphasis on the negative rather than on the positive?
MRS. HEDGEr1AN:

Yes. This has been a part of the pattern and one we are watching very seriously now. Of course this is part of the American pattern too, and the question of newspaper responsibility comes in here.
And the question of our belief that the Post was perhaps a little different all enters here. But the pattern is to present all of the bad in the picture. I would not want to whitewash one single problem Harlem has. I never have. I have said many of the things that have been said in these articles. But they have been so presented that it’s called Harlem as it Really Is, you see – it would make you think that this would be the total of Harlem.

-9-

J’.’JR. HEFFNER: And you would wat 12 more articles.
MRS. HEDGEMAN:

I want 12 more which tell the true story of a magnificent struggle for freedom. I want the quality of that struggle to appear here. Our well-nlgh i1literate laundress; I want to be given her proper focus. This is the thing that I plead for. No whitewashing. I
ean take it. I know Harlem better than most people. I have been in all of the churches and the store fronts and all of the kinds of experiences that one has there. I’ll even grant the mule, although frankly I haven’t seen him and I go around Harlem an awful lot.
I’ll even grant the mule. Take every bit of it you wish. But

please let’s put it in perspective. Here ls the most dramatic struggle in the w·orld today. For here are the most deeply rooted Americans, you see, more deeply rooted than any other except the American Indian, struggling to achieve their role, their place in society; and not having the positive end of this struggle presented as j_t ought to be, most of the time.
flffi • HEFFNER:

Well one thing is certain, on this program I have noted very very frequently in the nearly two years vJe have been on the air, unpleasantness is usually something that we don’t want to deal w th, and we don’t admit. And that’s why I thinl{; I would ask Mr.
Opotowslcy the sort of question I have asked many times on this

pl”ogram when someone has said: “well this can’t be.11 And I l”‘eally wanted to ask them: – “but suppose it is, suppose this is this
way and that’s all there is to it,then what are we going to do?11

Therefore, I would really ask you, Mr. Opotowsky whether you think you could write another 12 chapters to this series.

-10-

MR. OPOTOWSKY:

Well, we are getting away and Mrs. Hedgeman particularly, is getting away from the subject at hand. The subject at hand in this series was not the struggle of the Negroes, either for freedom or for success. The subject at hand was a picture of Harlem and the living conditiona th.e working conditions in Harlem. You could go off
on many many tangents about the wonderful things Negroes have done.

You can go off on many tangents about many horrible things Negroes have done. You can pick and pick and pick, but that was not the subject. The subject was simply Harlem.
f.ffiS. HEDGEMAN:

As it really is.

MR. OPOTO\vSKY:

That’s right. We picked a number of general subjects. I think I started out w·ith about 15 and we came down to about 12. We went into each of those subjects. There are many things left out.
Many subjects left out. You can bring up Langston Hughes, for example. No one can deny that Langston Hughes is both a success and a splendid fellow, but Langston Hughes is the one top Negro writer living in Harlem. He is mentioned in the series as such and there
is his focus.

The fact that Langston Hughes has succeeded at the typew·riter is incidental when you are talking about a few hundred thousand persons. You can mention him as an exception, but you must always remember
that he is an exceptlon and simply that. There has been some talk about stereotypes in this series and perhaps Ishould point this out: that although I cannot tell the sources of the material in Harlem, some of the most prominent Negro leaders are behind many
of the most unpleasant facts in this series. (MORE)

-11-

MR. OPOTOWSKY: (CONT’D)

They realize they were speaking off the record that is in the manner that they would not be identified. I think a good deal of the hue and cry would be elim:tnated if the huers and the criers knew the source of the information involved.
DR. DODSON:

I wouldn:’ t; say that. I think all of us would be aware of that mention of it. The question raised itself w·ith me as I look at
the series – I have worked w·ith this kind of problem over the years –

is it possible for one to write the kinds of articles that do the other things? I ask this because of the difficulty of getting people to believe facts which don’t fit the stereotypes. There is ambivalence in the Negro community’s leadership as there is
everJ here; because on one hand is the problemJ the eternal need

to overcome the kinds of stereotypes which there are; to eradicate the ghetto aspects of Harlem, and yet there is on the other handJ the necessity of exposing these problems if you are to get anything done about them.

So it’s this eternal thing you are caught in. And it seems to me that this is some of what the community is asking for now.
MRS • HEDGEMAN:

This leads right into the heart of what we are talking about, really. And that is – it would be presumed that a series done by a
responsible newspaper would want to be factual and at the same t:Lme

analytical enough to be useful to the outside of the community as well as the inside. Anybody who knows my record and the people I have worked with Imow that I have never ducked any evil. This is
no whitewash request.

(MORE)

-12-

MRS. HEDGEMAN: (CONT’D)

This is a request that this be put into proper perspective. I was just reviewing a series on Israel this morning. Beautifully done. But a positive series, because the basic understanding of the struggle appsars all the way through. Now here there is no basic understanding of the struggle and no basic appreciation of the fact that thls minorit;>• group may yet save these United States. For two
. thirds of the world you see, want exactly what we want. Two thirds

of the w·orld is going through this same struggle. And this has

not been comprehended in this series. Furthermore, the question of who is a leader always needs a definition. Anybody who gave this material ought to be quite willing to stand up and be counted
and believe me you haven’t heard from them. I know endless numbers of people who have been real leaders, that is, they have been at work with the community through all the years, who weren’t even touched. I made out a list the other day of 70 of them. I started to bring it down here; 70 of them, just writing as fast as I could
write, people who worlc in the community.

r.lffi. • HEFFNER:

Now·, Mrs. Hedgeman, you say that if they said these things they ought to be ready to stand and be counted. I wonder whether what is in here is, as far as it goes, correct as part of a picture.
MRS. HEDGEMAN:

I made no objection to the series if you notice. I did not object to the series although I could take the articles llne by line.
I am terribly embarrassed by their lack of insight. I could take them line by line, but I didn’t do this because it seemed to me
it was much more positive to present the things which needed to be

said and said swiftly.

-13-

DR. DODSON:

Well, could I take just a second to illustrate what I think is a problem. I won’t take but a minute.
11 Harlem is the home nobody loves.” ”Harlem is a ghetto.” “All the

businesses there exist because it is a ghetto.” ttMen have grown rich sell1_11.g ;.aople solace for their misery.11 I think of some of these fellow’S down·::;own, I mean, the context they could be put in.
!!The tattered man riding the mule”; “the saloon turns into a

whopping frenzy.” I’ve seen several in the Village that I- well you Imow·.

f!Only outside people own houses.” 11The politics are for outsiders.11

“All the successful Negroes pull out.” “Only three creative persons left up there.” These are stereotypes reinforced in the mind. vle11, I won’t go on. The mixed race is brought in. There are very few people not of a mixed race. 11Supermark:et sells chitterlings.” I nevel” saw chitterlings in a supermarket.
MRS• HEDGEMAN:

Oh they do sell them, but so what? I have not objected to the

series in terms of .•.

DR. DODSON:

I didn’t say they didn’t sell them. But anyway what I am saying is that when you get through with it the net effect of it is a stereotyped conception of a community that you say, yes, here are a few exceptions but here’s the conununity, a stereotype.
MR. HEFFNER:
Let me ask this. If you were to go into another community, Middletown, let 1 s say, w·ouldn 1 t you come out with a number of stereotypes, ones that others like yourself in this situation might say are not entirely true because there are exceptions to them, and I
wonder if this isn’t what Mr. Opotow·sky is trying to say.

-14-

DR. DODSON:

We have the problem of the role of the stereotype in journalism because meaning is conveyed through stereotypes. Do we just perpetuate the stereotypes or is there some hope that we begin to say, Negroes move out of Harlem like everybody else does and that they have mov:;d out faster simply because now there are some places
for them to go to.

MR. OPOTOWSKY:

There you are simply not remembering what you read. That particular statement is in the series. l en you start attacking stereotypes I think you are getting on pretcy flimsy ground because a stereotype can’t be true, I think you w·ill concede.
DR. DODSON:

There is an element of truth in most of them but

MR. OPOTOWSKY:

It is without question a fact that most of the businesses, especially the major buslnesses in Harlem not only are owned by outsiders but until comparatively recent times the Negroes of Harlem couldn’t
even get employment, much less own a share in these businesses.

MRS. HEDGEMAN:

But you might have said why.

Why they couldn’t?

MR. OPOTOWSKY:

MRS • HEDGErJIAN:

Yes. Mortg ge loans unavailable, you know?

MR. OPOTOWSKY:

That was in the serles.

MRS. HEOOEMAN:

I know but it does not give us the story as it ought to be given.

-15-

· OPOTO SKY:

This is what I have been going through in discussions of’ this series in the past weeks. Any time the discussion boils down to faats rather than just broad words like stereotypes, someone will bring
up a fact and I will say well that was in the series and the person w’ill say I don’t remember it or I Imow – but –
I think the w·hole series pretty much boils down to that: I lmow, but –

MRS • HEDGEMAN:
Well now, is this the kind of approach that the Post plans to take on this kind of material?

MR. OPOTOVISKY:

Well this I think is probably not our concern at this moment, whether the Post –
MRS • HEDGEf!IAN:

I’m sorry, I should have said you as a reporter. Is this the sort of thing that any community can expect? I would be just as
disturbed.

You mean the stereotype? Yes.
This is a fai.r question.

MR. HEFFNER: MRS • HEDGEMAN: MR. HEFFNER:
MRS. HEDGEMAN:

I w·ould be just as disturbed about this if it was done about any other community. If this is the sort of reporting, we might just as
well be reporting from some of our more bigoted communi.ties across
‘
the nation.

-16-

MR. OPOTOWSKY:

Well of course you are involved and I am not, for example, in Harlem. For any reporting I wtll do, I will simply go in, get all the facts available to me whether the person is willing to stand up to them or not, I would rather they would as you would.
MRS. HEDGEMAN: But you w·ill go for all the facts this time?
MR. OPOTOWSKY:

I w·ill – every .time.

DR. DODSON:

There’s this difference, though. A fact is what you see when you look, and I would have wished you had seen the significance of some other things, that you had put it all a little more in perspective. Then I would not care at all. I don’t mind saying for some people that you can buy chitterlings in the stores and so on. This is obviously a part of a folk culture pattern that is brought in.
MRS. HEDGErtlAN: That’s all you could buy in some areas.
MR. HEFFNER:

Well why don’t we ask Mr. Opotowslcy, we have a minute left, whether, if he were rewriting this, whether he would add the perspective
that seems to be required or whether he feels there is sufficient

for his purposes?

MR. OPOTOvlSKY:

No. I will tell you this. Yesterday afternoon in anticipation of the program, I read through that series for the first time since
it was written and just personally asked myself would I change any

word? My answer was no. I i’Wuld not change a word, bearlng in mind that my assignment was my assignment and not the assignment that
others w·ould like me to take on. (MORE)

-17-

MR. OPOTOWSKY: (CONT’D)

The Doctor has an assignment he would like me to take on. It’s an entirely different assignment. If he wants me to do a series on the progress of the Negro that could very well be done by the New York Post or anyone else. This assignment was not a series on the progress of the Negro, it was Harlem as it Is.
l\ffiS. HEDGEMAN:

vle w·ant only Harlem as it is. We want the rest of Harlem which is not here. vie want the implications of this clarified because America stands at the crossroads around the world and she may be saved by us, by our struggle to make democracy w·ork. This is not
here, and I am sorry.

MR. HEFFNER:

Thank you very much for joining me on this subject, in which I don’t thinl

Aslc Congress, which will appear next w·eek at this time on April 27 will have Representative Edna Kelly, Democrat of Brooklyn. We will be back w·ith The Open Mind on May 4 when we begin or continue
our series on the press when we will have the New· York Post Editor, James Wechsler and Congressman John Bell Williams of t1ississippi for a discussion of ‘1The South and a Fair Press.11 See you then, M