In August 1978, M.A. Farber, a New York Times reporter, was sitting in jail because he had refused to turn over to a New Jersey court his files for stories that had resulted in charges of murder against a physician. The files were sought by the physician's lawyer under the Sixth Amendment, which provides that the accused has the right, among others, "to have compulsory process for obtaining witnesses in his favor." Farber, on the other hand, claimed that his First Amendment free press rights protected him from being compelled to give information to the court. Both Farber and the Times were ruled in contempt of court, both were fined, and Farber was jailed.
This and similar recent cases involving reporters' privileges raise legal issues on which libertarian theory has something worthwhile to say. Although seldom so perceived by those who have raised bitter complaints about such rulings as a threat to freedom of the press, the issue is really more fundamental than the First versus the Sixth Amendment. The issue is the compulsory process clause of the Sixth Amendment. That is, is compulsory testimony, backed by the contempt power, justifiable—whether or not the press is involved? I have serious doubts about it.
Since the issue involves compulsion of the witness, we must ask whether it is right for him to be compelled; as in any other situation, the convenience or necessity of another party is really irrelevant to what is just for the individual against whom some form of coercion is proposed. Can we find justification—that is, a reason referring to justice or respect for rights—in the conduct of the person sought to be compelled? That is where we would have to look, because in the libertarian scheme of rights, there are no general positive obligations, obligations to do something for another as opposed to refraining from doing something to him. Positive obligations arise only from an individual's own actions, such as entering into a contract; the unfortunate straits of another cannot create them.
More abstractly, what is rearing its head here is the conflict between positive rights (here, the right of an accused person, via the State, to compel testimony) and negative rights (the right of the potential witness to be free of coercion). As an analytic matter, the two cannot be reconciled: if there is a general right to be free of coercion—and freedom of the press, for example, can only be soundly defended on these grounds—there can be no positive general rights of any kind. However much we may sympathize with what the Framers were trying to do in the Sixth Amendment, we have to conclude that they made a mistake when they tried to protect criminal defendants by giving them compulsory process. The only reading of that provision consistent with a liberal 18th-century regime of negative rights is to apply it solely against the State and its agents.
Although justice is the fundamental issue at stake, the prevailing idea that compulsory testimony is necessary also merits examination. As a general matter, I suspect that its importance is vastly overrated.
We should note, for example, that the most active branch of the government, the executive, has for the most part no contempt power yet functions quite well without it. Administrative agencies may appear to need it to back up their rulemaking and judicial functions, but as Goldfarb says in The Contempt Power:
Our country has always had a contempt power. Other countries have not. The free-wheeling, looser procedures by which civil law countries have progressed governmentally is some proof of the fact that the absence of the contempt power of American law need not be equivalent with the collapse of order.
Goldfarb goes on to relate that he has discussed the matter with a number of federal administrative agency attorneys and they report it is seldom used. For example, the Securities and Exchange Commission had used it only about 25 times in history. Even in the National Labor Relations Board, where tempers may run high, only about five cases a year are litigated. The Federal Communications Commission has the power but almost never uses it. The Tariff Commission and the Veterans Administration also have the power but have not used it. Some agencies, such as the Post Office, the Federal Reserve, and the Maritime Board do not have the power at all.
As another commentator remarked in the Michigan Law Review:
I wonder if agency investigators truly have demonstrated either a dependence on compelled testimony, or a gain from such testimony that anywhere near offsets the dangers that lurk in powers to compel.
In the legislative branch, the power is supposedly justified by Congress's need to inform itself so as to enact wise laws. In the old days, when congressional hearings were mainly for this law-making function, this power was little used. This is probably the result of the self-interest of various parties who not only need not to be compelled but anxiously seek to testify before Congress in the hope of influencing legislation.
With the use of congressional hearings as a vehicle for exposing wrongdoing, however, controversy over its contempt power has developed. The propriety of using hearings to expose crime or subversion, rather than draft new laws, is still actively debated. But whatever one thinks of the desirability of congressional exposés, past experience does not suggest that the law-making function of Congress is dependent upon compelled testimony. For this purpose, Congress has an overabundance of witnesses, not a shortage.
Even on the judicial side, I am not convinced that compelled testimony would be essential in a properly structured legal system. We know from our experience in so many other fields that rights-respecting, freely arrived-at solutions constantly solve problems that the statists have found insurmountable. We could expect people, once they realized that the government could not compel testimony, to adjust their conduct to allow for this fact. For example, there would almost certainly be included in all insurance arrangements contractual obligations to testify. Inasmuch as these would be special, rather than general, obligations, there would be no analytical conflict with the general freedom from coercion.
It would be interesting to find out to what extent courts actually rely on compulsory testimony in their normal operations. I am told by a criminal prosecutor that in his experience courts do not enforce witness subpoenas in cases not involving serious criminal offenses. As I look at the evidence, I do not believe that a strong case can be made for the necessity of compulsory testimony, especially under a legal system that encouraged institutional arrangements providing for other, voluntary means of obtaining witnesses. But until we bite the bullet and face the central issue—whether our right to freedom from compulsion includes a right to be free from compulsory testimony—many more Farber cases can be expected to arise, but without any prospect for satisfactory resolutions.
Davis Keeler is director of the law program of the Institute for Humane Studies and edits their quarterly, Law & Liberty. Before joining the Institute in 1972, he practiced law in Chicago.