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e. Criminalizing "Leaking" of Government Information: Section 1525 of S. 1722 makes it a crime for government employees to leak to the press ang "private" information which the government has from oil, auto, drug and defense contracting firms and other non-governmental organizations, regardless of its content. The public's right to know is deeply involved here. The Reproters Committee for Freedom of the Press noted (House Hearing Part 2, p. 1268):

"Supporters of the legislation have argued that much of the infomation covered in this new provision is already covered under current law. We would agree that current law in an effort to protect trade secrets, patents and competitive financial information, does impose a crazy patchwork of criminally enforceable silence on government employees.

"In view of Watergate, the C.I.. and F.B.. scandals, the disclosures about the Immigrantion and Naturalization payoffs to foreign and domestic officials by contractors, the Medicaid scandals and the welfare scandals, etc., the Congress ought to encourage federal employees to step forward with information indicating crime, mismanagement and deception in the operation of government.

f. Theft and Related Offenses as Equivalent of Official Secrets Act Dangers to the press and media are also presented by the sections dealing with Theft (Sec. 1731), Trafficking in Stolen Property (Sec. 1732) and Receiving Stolen Property (Sec. 1733). Theft includes the obtaining or using the property of another with intent (1) to deprive the other of a right to the property or a benefit of the property; or (2) to appropriate the property, to his own use or to the use of another person." Sec. 1731 (a (1) and (2). Sec. 1731 (b) (2) makes the offense a Class Di felony if the property is (B) (111) "a record or other document owned by or under the care, custody, or control of the United States."

Concededly, Sec. 1740 (c) provides a bar to prosectuion under the Theft, Trafficing in Stolen Property, and Receiving Stolen Property sections where it is proved that () the subject of the offense was intangible property owned by, or under the care, custody, or control of, the United States; (2) the defendan obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained by stated illegal means. The precise dimensions of this bar to prosecution are uncertain. What is meant by "intangible property" as distinguished from the physical record, e.g., the specific paper that the Pentagon Papers were printed on? Who is to decide that the property was obtained or used "primarily for the purpose of disseminating it to the public? Dangers contin Indeed, the charge of theft of government secrets on paper is precisely one of those on which David Truong and Ronald Humphreys were convicted of "espionage." The bar to prosecution does not appear to be sufficiently specific and clearcut to provide a binding protection against governmental abuse,

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g. Inchoate Offenses: Potent threats to the press and news media are also presented by the inchoate offenses, including conspiracy (Sec. 1331). This makes it possible to link those involved in the chain of circulation of news to the public newsperson, editor, publisher, news organization with the "leaker" of government information, including classified information. The result is that even though the S. 1722 offense runs ostensibly against the government employee who "leaks" the information, the newspersons can be caught up in the criminal net one step removed by the device of calling them "conspirators." The danger is real and ominous.

h. Refusing to Testify (Sec. 1333), Additional criminal sanctions are provided by S. 1722 against the courageous jouranlist, editor or publisher who refuses to reveal a confidential news source or to produce confidential information that would disclose the identity of the news source. The courts can find the newsperson guilty of criminal contempt of court for refusal to obey a court order (Contempt, Sec. 1332). Refusal to testify or to produce information before an "official proceeding that is conducted under the authority of Congress or either House of Congress" or before a federal district court is criminalized by Sec. 1333, Refusing to Testify or to Produce Information.

1. Disobeying a Judicial Order (Sec. 1335): Still ano ther weapon which S. 1722 would make available to the federal prosecutors to coerce information from unwilling journalists or others in the news profession is provided by Sec. 1335, Di so beying a Judicial Order. It is made an affirmative defense to a prosecution under this provision that the court's order, whether temporary or final

"(1) was invalid and that the defendant took reasonable and expeditious steps to obtain a judicial review of its validity, or a judicial decision with respect to a stay thereof, prior to the disobedience or resistance charged, and was unsuccessful in obtaining such review or decision within a reasonable period of time; or

"(2) was constitutionally invalid and constituted a prior restraint on the collection or dissemination of news."

"Gag orders" directed to the press are proliferating at an alarming rate. They are by no means confined to the banning of the Progressive article about how to manufacture a hydrogen bomb. The Reporters Committee for Freedom of the Press listed a startling number of prior restraints recently imposed upon the press. House Hearings, Part 2, pp. 1255- 1259. We urge the members of Congress to read this tabulation of interference with the press and to consider the erosion of the First Amendment which is thereby achieved.

S. 1722 presents continuing unacceptable dangers to the press, the news media, both written and TV, and the public's right to know. For this important reason too, the

New Jersey Coalition to Defend the Bill of Rights opposes S. 1722.

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10. Continuing Dangers to Political Opposition that Allegedly Interfaces with Government Operations:

serious dangers include Obstructing a Government Function
by Fraud (Sec. 1301), the new crime of Obstructing a Government
Function by Physical Interference (Sec. 1302), Obstructing
a Proceeding by Disorderly Conduct (Sec.1334) and Retaliating
Against a witness or an Informant (Sec. 1324). The distinguished
majority whip in the Senate, Senator Alan Cranston, warned
of the dangers in Chapter 13" as a particular instance of a
considerable expansion of Federal criminal jurisdiction in
ways which can limit citizens' freedoms. Cranston, Cong. Rec.,
Senate, Jan. 30, 1978, S. 853. He listed a number of the dangers
which Chapter 13 of S. 1437 would impose upon the country,
including the manner in which it would have armed the Government
with criminal sanctions to back up the edicts, paperwork
requirements and actions of an army of 100,000 bureaucrats
with law enforcement responsibilities in 87 departments and
agencies. Ibid.

Those dangers persist and are carried forward into

S. 1722 from its immediate predecessor, S. 1437 of the last
Congress. This Honorable Subcommittee should carefully read
and ponder upon Senator Cranston's warning as to the danger of
this particular Chapter. We analyze them briefly below. They are
illustrative of the parallel dangers in other provisions of
S. 1722.

a. Obstructing a Government Function by Fraud: Sec. 1301 of S. 1722, unchanged from S. 1437, introduces a new federal crime. It would make a person guilty of a Class D felony (imprisonment for up five years; fine for an individual of up to $250,000 and for an organization of up to one million dollars) "if he intentionally obstructs or impairs a government function by defrauding the government through misrepresentation, chicanery, trickery, deceit, craft, overreaching, or other dishonest means."

The press has been placated by provision of a bar to provision (Sec. 1301 (b) "that the ffense was committed solely for the purpose of disseminating information to the public. (Emphasis supplied). The obvious weakness here is that the government is free to establish that there is any other basis for the alleged "fraud" than solely dissemination of the information to the public. For all other citizens this new provision of S. 1722 (wisely omitted in its entirety from S. 1723, see Chapter 17) presents a very serious and major danger to civil liberties. Any attempt by a political activist to avoid FBI surveillance may be used as a basis for invoking this section. The familiar example of Harry Bridges, the trade union leader, who dropped misleading notes in his wastebasket to confuse the FBI agents who regularly scavenged it and kept him under surveillance provides ano th example. Businessmen are vulnerable if the government investigators and prosecutors can claim that they have engaged in some deception in fulfilling a government contract.

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b.Obstructing a Government Function by Physical

Interference: Sec. 1302 of S. 1722 carries over unchanged from S. 1437 a new crime widely recognized as being extremely dangerous and repressive. This section would make a person guilty of the offense if "by means of physical interference or obstacle, he intentionally obstructs a goverment function in fact involving (1) the performance by a public servant of an official duty; (2) the performance by an inspector of

specific duty imposed by statute, or by a regulation, rule, or order issues pursuant thereto; (3) the delivery of mail; or (4) the exercise of a right or the performance of a duty, under a court order, judgment, or decree." The offense is a Class A misdemeanor except under circumstances so clearly protected by the First Amendment that the downgrading of the offense under these circumstances to an infraction puts in strikingl sharp focus how deeply constitutional rights are being eroded by S. 1722.

It is startling to have Sec. 1302 appear unchanged in S. 1722 in view of the wide recognition it has received for its civil liberties dangers. The sole defense is that the government function was "unlawful" and as "conducted by a public eervant who was not acting in good faith." (Sec. 1302 (b) (1) and (2)).It permits severe criminal snactions against any physical interference or obstacle which impairs any government function under any circumstances.

Federal

Moreover, there is federal jurisdiction over an offense described in this section if the government function is a federal government function. This extends Federal jurisdiction broadly to interference with local and Stat officials who operate under Federally funded programs. The unlimited scope of this provision was readily apparent in S. 1437. Its terms permit criminal prosecution of those who participate in a demonstration that partially blocks a post office, or to many other instances where a traffic jam could hold up government employees, 1.e., a traffic jam during a demonstration in Washington, D. C. It would apply to a union and union members who continue to picket after an overbroad and invalid injunction issued by a judge who states that he is "acting in good faith," Welfare clients who demonstrate against a State social service agency operating under a federally financed welfare program can go to prison and be heavily fined under Sec. 1302.

The crime is made an infrantion by S. 1302 (a) ( 2) if the physical interference or obstacle"(A) is created in the course of picketing, or a parade, display, or other demonstration otherwise protected by rights of free speech or assembly; (B) is nonviolent; and (C) does not significantly obstruct or impair a government function." Why any conduct should be criminalized under those circumstances so clearly protected by the First Amendment is simply not apparent. With or without this ostensibly benevolent downgrading to criminalize the exercise of Bill of Rights freedoms, Sec. 1302 will still mean that demonstrators or those chosen for selective prosecution as the leader or leaders of a demonstration are going to be arrested, on a claim, for example, that the demonstration has blocked a doorway to some government building or facility. It provides a legal basis for putting the demonstrators and their leaders out of action during the demonstration. It compels obedience to even an order made in gbad faith since there is a danger of criminal

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punishment for violating an order abusing judicial powers.

S. 1723 has wisely modified this provision greatly.Sec. 1701 of S. 1723, denominating Obstructing a Government Function by Force, is sharply limited in scope. Its applicability is now to be limited (under S. 1723) to (1) service of process, (2) the performance of duties by an extradition agent of the United States, (3)" the exercise of rights or the performanco of duties under any order, judgment, or decree of a court, or (4) the passage of the United States mail. It is difficult to see why the underlined portion is needed (subsection (3)) since the broad contempt powers of a court would readily reach this offense.

S. 1723 further modifies the dangers of this new crime by limiting its jurisdictional scope,

The carrying over of this S. 1437 crime intact into S. 1722 is an ominous reminder that S. 1722 contains many of the same dangers to civil liberties which have deeply concerned those who appraise the proposed bills against the protections we had thought were guaranteed by the Bill of Rights. There should be strict limitation of this type of crime to specific areas, such 23 physical interference with the mails or with government inspection. It is unacceptable to the New Jersey Coalition to Defend the Bill of Rights in the unchanged formulation in which it appears in Sec. 1302 of S. 1722.

c. Obstructing a Proceeding by Disorderly Conduct (Seo. 1334): Another provision, unchanged from S. 1437 is Section 1334. This makes it an offense if a person "obstructs or impairs an official procding by means of noise that is unreasonable, by means of violent or tumul thous behavior or disturbance, or by similar means." The latter catch-all term "by similar means" is both overbroad and of almost unlimited scope. It could be construed to include almost anything. It permits the government to criminalize dissenting behaviro that cannot be prosecuted as coming within the almost equally vague term "disturbance." Who is to decide what noise is "unreasonable" or what is "violent or tumultuous behavior or disturbance"? Entirely too much discretion: is given to the judge or other presiding officer. A person be charged with this sweeping federal crime whenever the judge or presiding officer decided that that person was being disruptive in any way. The offense is further dangerous in that its scope is extremely broad. It applies to an "official proceeding which is defined to mean "a proceeding convened pursuant to lawful authority, or a portion of such a proceeding, that is or may be heard before (a) a government branch or agency, or (b) a public servant who is authorized to take oaths, including a judge, a chairman of a Member of Congress authorized by a legislative committee or subcommittee, a bankruptcy judge, an administrative law judge, a hearing examiner, and a notary. In short, it reaches virtually any governmental proceeding and confers broad now powers to repress demonstrations or oppo si tion.