On S.1437

Andrew Multer's article on S.1437 is a fair example of the misrepresentation and scare tactics used against the proposed Federal Criminal Code reform.

The bill, Mr. Multer writes, "leaves the door open for an official secrets act and unprecedented restrictions on the freedoms of speech and press." Sounds terrible, doesn't it? The only thing is that there is not a grain of truth in the statement. The bill as it passed the Senate contains no new provisions whatever relating to an "official secrets act." The only changes it makes in existing law in this area are liberalizing changes, for instance giving the press a new defense against contempt charges for violating judicial gag orders.

Mr. Multer goes on to attack as "particularly offensive" the fact, as he puts it, that "reporters could, under certain circumstances, be jailed for refusing to reveal sources." If he can find a new clause in the code that says that, he wins a prize. For the bill simply leaves untouched the Supreme Court's decision that reporters are not immune from the general obligation on citizens to testify about crimes they have witnessed. That decision may be wise or unwise; but the subject is so complicated that former Senator Sam Ervm, setting out to change it by statute, found himself unable to write appropriate legislation after extended hearings. Is the code reform to be faulted because it does not deal with this subject?

A final example of Mr. Multer criticizing the proposed code for what it does not do: "Current conspiracy laws, perhaps the most easily abused sections in the Criminal Code, are left untouched. S.1437 is plagued with such potential disasters." Yes, and the bill does not make other changes that he and I and other liberals would like. But it makes some reforms long desired by liberals, such as repeal of the Smith Act, and as far as I know it includes no retrogressive changes in existing law.

In short, the proposed code is a significant improvement on existing Federal criminal law but does not include all the improvements that some of us would like. The issue, therefore, is whether to oppose it now in the hope that a more liberal version will be produced. The answer depends on whether one thinks public opinion is moving in a more or less liberal direction on issues of criminal law. To me, the signs of growing illiberalism are plain, so I think we should settle for the improvements in the draft code as the best imaginable for the indefinite future. Others will disagree. But at least we should debate what the bill actually includes, not imaginary horrors.

--Anthony Lewis '48